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Employer Action Required: New Regulations on Harassment, Discrimination and Retaliation Policies and

Employee Handbook April 2016 by Shivani Sutaria - Sutaria Law in San Mateo County for Employers

Attention Employers! To ensure compliance with the California Fair Employment and Housing Council’s new regulations - which went into effect on April 1, 2016 - employers with five or more employees will need to update their discrimination, harassment and retaliation policies and procedures as well as what pregnancy disability leave notices are posted and provided to employees.

Although most of the new regulations are aimed at bringing conformity with recent statutory law changes and court decisions interpreting the Fair Employment and Housing Act (“FEHA”), others enumerate detailed requirements for employers. Provided below is information on language that is now required in discrimination, harassment and retaliation policies, the necessary components of an internal complaint mechanism, and the acceptable distribution methods of these policies. In addition, links are provided to the new Pregnancy Disability Leave Notices.

Shivani Sutaria Law Offices is available to answer your questions on these matters and to review and update your employee handbook or policies to ensure compliance with these new regulations.

Equal Employment Opportunity Policies and Procedures

Written Policy Requirements Covered California employers must develop a harassment, discrimination, and retaliation prevention policies that:

  • Are in writing and translated into every language that is spoken by at least 10 percent of its workforce;

  • States ALL current protected categories covered under FEHA;

  • Indicates that the law prohibits supervisors and managers as well as coworkers and third parties from engaging in the prohibited conduct;

  • Requires supervisors to report any complaints of misconduct to a designated company representative so employers have the opportunity to address complaints internally;

  • States that when an employer receives allegations of misconduct - orally or in writing - it will conduct a fair, timely and thorough investigation that provides all parties with appropriate due process and results in reasonable conclusions based on the evidence collected;

  • Provides a complaint procedure that allows employees to directly complain to others besides his or her immediate supervisor, such as a human resources professional, EEO officer, another supervisor, complaint hotline, ombudsperson and/or the DFEH/EEEOC;

  • Outlines the employers’ internal complaint procedure (the required components of the procedure are explained below)

  • States that confidentiality will be kept by the employer to the extent possible;

  • Indicates that appropriate remedial measures will be taken if an investigation reveals misconduct; and

  • Makes clear that employees will not face retaliation for making a complaint or participating in an investigation.

Internal Complaint Procedure The new regulations require employers to establish an internal complaint procedure to ensure that written and oral complaints receive:

  • An employer’s designation of confidentiality to the extent possible;

  • A timely response;

  • Impartial and timely investigations by qualified personnel;

  • Documentation and tracking for reasonable progress of the investigation;

  • Appropriate options for remedial actions and resolutions if warranted; and

  • Timely closures.

Policy Dissemination

Per the new regulations, employers must disseminate the written discrimination, harassment and retaliation policies by one or more of the following methods:

  • Providing printed copies or emailing electronic copies with acknowledgment forms for employees to sign and return;

  • Posting in the workplace or on an intranet site with a tracking system to ensure that everyone has read and acknowledged receipt;

  • Discussing upon hire or during new employee orientation; and/or

  • Any other way to ensure receipt.

Pregnancy Disability Leave

Employers must also comply with new notice requirements related to Pregnancy Disability Leave (“PDL”). Previously, employers covered under the PDL law (employers with 5 or more employees) posted agency-created “Notice A” and employers covered under the PDL law and FMLA/CFRA (employers with 50 or more employees) posted agency-created “Notice B”. In July 2015, a notice titled “Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave” replaced “Notice B”. Now a new Notice titled “Your Rights and Obligations as a Pregnant Employee” replaces “Notice A”.

In an alternative to providing these agency-created Notices, an employer can create its own posting that contains information on:

  • An employee’s right to request reasonable accommodation, transfer, or pregnancy disability leave;

  • An employee’s obligations to provide adequate advance notice to the employer of the need for reasonable accommodation, transfer or pregnancy disability leave; and

  • An employer’s requirement, if any, for the employee to provide medical certification to establish the medical advisability for reasonable accommodation, transfer, or pregnancy disability leave.

  • How an employee can contact the Department of Fair Employment and Housing to learn more about her rights and obligations and to file a complaint.

As before, these postings must appear in a conspicuous place on the premises, be large enough to be easily read and contain fully legible text. Electronic posting is acceptable as long as it is posted electronically in a conspicuous place or where employees would tend to view it in the workplace. Employers must also provide the notice to an employee who informs the employer of a pregnancy or the need for pregnancy leave or reasonable accommodation. For employers with workforces at a facility or office where more than 10% of the employees speak a language other than English, the notice must be translated.

Lastly, employers are required to state that reasonable accommodations, transfers, and pregnancy disability leave is available to pregnant employees in its next employee handbook or distribute a hard or electronic copy of the notice on an annual basis.

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