With minimal public commentary, the Department of Fair Employment and Housing has passed new regulations broadening and strengthening the Fair Employment and Housing Act. While it’s too late to (officially) complain about them, here’s why you should care:
A) The new regulations significantly expand who is protected under FEHA.
First, the definition of “employer” is expanded so that smaller employers with fewer than five employees who utilize outside contractors, interns or even unpaid volunteers must comply with the Act. Second, it formalizes protection under the Act for non-employees in the workplace such as unpaid interns and volunteers. Third, it expands pregnancy-related protections to transgender individuals by eliminating the word “woman” from the rules.
B) The new regulations impose stricter requirements for sexual harassment training.
Existing regulations limit employer recording keeping to basics like the name and date of the training. However, now employers need to keep copies of all materials utilized by the trainer including written slides, materials, attendance sheets, questions submitted during the seminar or webinar, and responses given by the trainer. All records must be kept for two years.
C) The new regulations enhance employer notice requirements.
Though the regulations stop one step short of requiring employers to actually accompany an employee to the DFEH to file a claim, they place extra burdens on employers to notify employees of their rights. In addition to handing out pamphlet DFEH-185 on sexual harassment, employers need to proactively provide a copy of their anti-harassment policy via hard copy, e-mail or intranet. Further employers must ensure employees understand and affirmatively acknowledge receipt of such policies. Employers must also translate such policies into all languages that are spoken by 10 percent or more of their workforce.
D) The new regulations require more from employer policies. Specifically, employers must develop a harassment, discrimination, and retaliation prevention policy that:
(1) Is in writing.
(2) Lists all current protected categories covered under the Act.
(3) Indicates 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 the Act.
(4) Creates a complaint process to ensure that complaints receive: confidentiality to the extent possible; a timely response; impartial and timely investigations by qualified personnel; documentation and tracking for reasonable progress; appropriate options for remedial actions and resolutions; and timely closures.
(5) Provides a complaint mechanism that doesn’t require an employee to complain directly to his or her immediate supervisor, including an alternate reporting structure, a complaint hotline, or access to an ombudsperson.
(6) Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally.
(7) Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
(8) States that the employer will keep the investigation confidential to the extent possible, but does not promise complete confidentiality.
(9) Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
(10) Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
As a result of these new obligations, employers should review their harassment, retaliation and training policies to ensure compliance with the regulations. As always, my colleagues and I are available to answer any questions.