Amendments to California’s Fair Employment and Housing Act (FEHA) Regulations go into effect on April 1, 2016. It is critical that employers ensure compliance with the amended regulations and make revisions to (or implement) written policies, if needed. Among other things, the amended regulations:

• Require employers to maintain detailed written anti-discrimination and anti-harassment policies; and 

• Require employers to distribute and translate these policies 

Covered Employers

FEHA only applies to employers with 5 or more employees. The regulations expand what it means to have 5 employees by including out of state employees in the 5-employee threshold. 

Written Harassment, Discrimination, and Retaliation Prevention Policies

The regulations require employers to develop a harassment, discrimination, and retaliation prevention policy that meets detailed requirements. Specifically, the policy must: 

(1) Be in writing; 

(2) List all current protected categories covered under FEHA (i.e., race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age for individuals over forty years of age, military and veteran status, and sexual orientation); 

(3) Indicate that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by FEHA;

(4) Create a complaint process to ensure that complaints receive (a) confidentiality to the extent possible; (b) a timely response; (c) impartial and timely investigation; (d) documentation and tracking for progress; (e) appropriate remedial actions and resolutions; and (f) timely closure;

(5) Provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor;

(6) Instruct supervisors to report any complaints of misconduct to a designated company representative; 

(7) Indicate that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation; 

(8) State that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential;

(9) Indicate that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken; 

(10) Make clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Distribution of the Policy

The policy must be distributed to all employees by: 

(1) Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return; 

(2) Sending the policy via e-mail with an acknowledgment return form; 

(3) Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies; 

(4) Discussing policies upon hire and/or during a new hire orientation session; and/or 

(5) Any other way that ensures employees receive and understand the policies.

Translation of the Policy

The policy must be translated into any language that is spoken by 10% or more of the employer’s workforce. 

Takeaways

California employers should immediately review their existing written policies to ensure compliance with the amended regulations and make sure they are circulated as required by the regulations. To the extent an employer does not have written policies in place, they should immediately put such policies into writing and disseminate them. California employers should also make sure that they have in place procedures to receive and investigate complaints and properly train all supervisors and managers to handle complaints in accordance with the amended regulations.    For more information contact:

Gary E. Scalabrini, Esq.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP 
1880 Century Park East 12th Floor
Los Angeles, CA 90067
email: gscalabrini@gibbsgiden.com

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