New Workplace Policy and Training Requirements in California

Two new employment laws in California went into effect last month, and all companies should consider whether they are impacted by the changes.

A. Additional Requirements for Anti-Discrimination and Anti-Harassment Policies

First, as of April 1, 2016, the California Department of Fair Employment and Housing ("DFEH") requires employers with five or more employees to develop written anti-discrimination and anti-harassment policies that satisfy several specific requirements. The policies now must:

• Be written.
• State the categories of individuals protected by Fair Employment and Housing Act ("FEHA").
• Make clear that FEHA prohibits coworkers, third parties, supervisors and managers from engaging in discriminatory, harassing, or retaliatory conduct.
• Set forth a complaint procedure to ensure that complaints are: (a) kept confidential to the extent possible; (b) responded to in a timely manner; (c) investigated by “qualified personnel” in a timely and impartial manner; and (d) documented and tracked. The complaint procedure must also provide for appropriate remedial action and resolution/timely closure of investigations.
• Provide that allegations of misconduct will be addressed through a fair, timely, and thorough investigation.
• Establish a complaint mechanism that does not require an employee to complain directly to an immediate supervisor.
• Instruct supervisors to report any complaints of misconduct to a designated company representative so the company can attempt to resolve the claim internally.
• Explain that confidentiality will be kept by the employer to the extent possible.
• State that if misconduct is found during the investigation, appropriate remedial measures will be taken.
• Make clear that the company will not retaliate against employees for submitting a complaint or for participating in an investigation.

Employers are then required to disseminate their policies by one or more of the following methods:

• Providing printed copies of the policies to all employees with an acknowledgment for employees to sign and return;
• Sending the policies via email with an acknowledgment return form;
• Posting current versions of the policies on a company intranet with a tracking system to ensure that all employees have read and acknowledged receipt of the policies;
• Discussing the policies upon hire or during new employee orientation/training; or
• “Any other way that ensures employees receive and understand the policies.”

B. Updated Training Requirements

Second, as many companies realize, California employers with 50 or more employees are required to provide supervisory employees with a minimum of two hours of sexual harassment training. As of April 1, 2016, there are additional requirements for the mandatory training. Now the training must also:

• Instruct supervisory employees of their obligation to report potential sexual harassment, discrimination, and/or retaliation of which they become aware;
• Provide an overview of the remedies available for sexual harassment victims in civil actions, as well as potential employer/individual exposure and liability; and
• Cover “abusive conduct" (i.e., bullying) in a “meaningful manner,” including by: (a) providing a definition of abusive conduct; (b) explaining the negative effects of abusive conduct on the victim and others in the workplace; (c) specifically discussing the elements of abusive conduct; (d) providing examples of abusive conduct; and (e) emphasizing that, unless the conduct is especially severe or egregious, a single act shall not constitute abusive conduct.

“Abusive conduct” is defined under the California Government Code as the “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”

Employers should review and revise their policies, employee handbooks, and anti-discrimination/anti-harassment training materials so they comply with these new laws. Please contact us if you have any specific questions about how these new laws impact your organization.