California’s Department of Fair Employment and Housing has amended several regulations that become effective April 1, 2016. Many of the amendments simply reflect prior court decisions interpreting the Fair Employment and Housing Act (“FEHA”). Other amendments may require affirmative steps on the part of employers. Below is a summary of the more noteworthy amendments, but employers should be mindful of the complete set of amendments.
1. Covered Employers / Employees
The amended regulations expand the definition of “covered employer” by including companies that have a total of five employees, even if the company is headquartered outside California and employs fewer than five employees inside California. The regulations now also make clear that FEHA’s protections extend to unpaid interns and volunteers.
2. Updated Written Harassment, Discrimination And Retaliation Policies
Covered employers must have written harassment, discrimination, and retaliation prevention policies, in addition to distributing the DFEH’s Brochure 185 on Sexual Harassment. Further, the written policy must list all of California’s protected classes (race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age [over forty] and military and veteran status). The policy must expressly provide that the employer prohibits unlawful discrimination, harassment and retaliation by any employee or third party who comes into contact with an employee. The regulations also clarify that the complaint process for victims of unlawful treatment should allow for direct communication with a person other than the victim’s supervisor.
The updated policy must be distributed to all employees, unpaid interns and volunteers, and, if more than 10% of the workers in a given location primarily speak a language other than English, employers must translate the policy into those languages.
3. Supervisor Sexual Harassment Training And Record-Keeping Requirements
Since 2005, California employers have been required to provide two hours of sexual harassment training to supervisors every two years. The required training must now specifically include lessons on potential liability for employers and individuals; obligations to report sexual harassment, discrimination, and retaliation; appropriate remedial or corrective measures; and “abusive conduct” that may not rise to the level of unlawful harassment, discrimination or retaliation.
In addition, employers must maintain the following information related to supervisor harassment training for a minimum of two years:
- Names of the supervisory employees trained,
- Date of training,
- Sign in sheet,
- Copy of all certificates of attendance or completion issued,
- Type of training,
- Copy of all written or recorded materials that comprise the training, and
- Name of the training provider.
4. Pregnancy Discrimination and Pregnancy Disability Leave (“PDL”)
The regulations expand the definition of “eligible female employee” to include a transgender employee who is disabled by pregnancy and clarify that unlawful harassment because of pregnancy also includes harassing an employee or applicant because of childbirth, breastfeeding, or any related medical conditions. The regulations further attempt to clarify and simplify the requirement to provide and post a PDL notice into one notice that combines the relevant information, including: the PDLA’s provisions; how to contact the DFEH to file a complaint, a statement that PDL need not to be taken in one continuous period of time; and a statement that eligible employees are permitted to take four months of PDL per pregnancy, not per year.
The new regulations principally codify existing law. However, employers should ensure that their policies are updated in accordance with the new regulations. A copy of the lengthy Final Text of the amended regulations may be found here.
This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.