As we discussed in our 2016 Employment Law Update seminar series, recently enacted California regulations require that in addition to distributing California’s DFEH-185 brochure on sexual harassment, or an alternative compliant writing (such as an anti-harassment policy contained in an employee handbook), “an employer shall develop a harassment, discrimination, and retaliation prevention policy” meeting a lengthy list of language requirements. The new regulations take effect April 1, 2016. Employers are required to disseminate the new policy to employees using one or more methods specified by the regulations. Translation is required for any facility where 10 percent or more of the employees speak a language other than English. You may access a copy of the new regulations with this link: Section 11023(b)-(d).
Employers should not assume that their existing policies meet the new requirements. The regulations make clear they require adoption of the new policy “[i]n addition” to the writings used by employers to satisfy the requirements under pre-existing law on prevention of sexual harassment (e.g., an anti-harassment policy contained in an employee handbook). The regulations also require employers to obtain employee acknowledgement that they have received, read, and understood the new policy. To ensure compliance, we generally recommend that employers disseminate the new policy as a separate, stand alone document from their employee handbook.
Moreover, the new regulations require language and provisions that have not been traditionally included in EEO and anti-harassment policies. For example, detailed complaint procedures have traditionally been included in anti-harassment policies, but not discrimination and retaliation prevention policies. Under the new regulations, detailed complaint procedures must apply to harassment, discrimination, and retaliation.
The new regulations also require the policies to list all protected categories under the California Fair Employment & Housing Act. Many existing employer policies do not list recently added protected categories, such as gender expression. There are a variety of other technical wording requirements that most existing EEO/harassment policies do not appear to meet.
California employers should work with their employment law counsel to ensure compliance before April 1, 2016. Clients of Hixson Nagatani LLP may request a template from any attorney of the firm. The template will be provided free of charge to any client that has worked with the firm since November 1, 2015 on employee handbook review/development, or harassment/abusive conduct prevention training. Other clients may request the template for a fee that will include consulting time credit to help customize and finalize the policy.