California regulations require that employers distribute California’s DFEH-185 brochure on sexual harassment, or an alternative compliant writing (such as an anti-harassment policy contained in an employee handbook), and in addition (as of April 1, 2016) a harassment, discrimination, and retaliation prevention policy that meets a lengthy list of requirements. We generally recommend complying with the former through a compliant harassment prevention policy in an employee handbook, and the latter with a separate stand alone harassment, discrimination, and retaliation prevention policy.
Recent California law developments necessitate updates to both of these policies. First, the California Government Code requires that harassment prevention policies describe the legal remedies and complaint process available through the Department of Fair Employment & Housing (“DFEH”). Whereas the complaint process previously provided for one year for employees to file complaints with the DFEH, California Assembly Bill 9, also known as the Stop Harassment and Reporting Extension (SHARE) Act, provides that employees now have three years to file a DFEH complaint. Employers must update their policies to reflect this new timeframe (effective January 1, 2020).
Next, the California Government Code now requires that a policy include “a link to, or the Internet Web site address for, the sexual harassment online training courses developed pursuant to Section 12950.1 and located on the Internet Web site of the Department of Fair Employment and Housing.” While we believe that live, in-person training is much more effective for employees, employers must nevertheless update their policies to include this information.
In addition, we recommend that employers include a section in the harassment prevention policy about the timing for harassment and abusive conduct training. However, Senate Bill 778 modified the timing for such training, and these deadlines should be modified in the policy. See our September 23, 2019 employment law alert for information regarding these modified deadlines.
As we have discussed in earlier seminars, effective January 1, 2019, California dramatically expanded the definition of unlawful harassment. For example, pre-2019 law required “severe or pervasive” harassment to constitute an unlawful hostile work environment. Under California law, however, discriminatory harassment becomes unlawful if it “disrupt[s] the victim’s emotional tranquility in the workplace, affect[s] the victim’s ability to perform the job as usual (i.e., makes it more difficult to do the job), or otherwise interferes with and undermines the victim’s personal sense of well-being.” Employers that did not already update their policies accordingly for 2019 should do so now. We recommend that employers work with legal counsel to update both their employee handbook policy against harassment, as well as their separate harassment, discrimination and retaliation prevention policies, to comply with these requirements effective January 1, 2020.