New California Regulations Regarding Discrimination, Harassment and Pregnancy Disability Leave

By Anthony DiBenedetto and Tracey Silver on April 1st, 2016Posted in California Labor & Employment Law, Discrimination, Harassment, Pregnancy Leave, Retaliation, Sexual Harassment

New California anti-discrimination, anti-harassment, and pregnancy disability leave regulations go into effect on April 1, 2016.  The substantive law regarding these issues has not changed.  However, the new amendments enumerate detailed requirements regarding anti-harassment policies and investigations, and institute additional notice and recordkeeping requirements.

Anti-Discrimination and Harassment Regulations

The new anti-discrimination and harassment regulations clarify an employer’s duty to take reasonable steps to prevent discriminatory and harassing conduct.  Specifically, the amended regulations require employers to create written policies that meet the requirements detailed below.

Policies and Investigations

Beginning April 1, 2016, all California employers must develop a harassment, discrimination, and retaliation prevention policy that:

·         is written;

·         lists all current protected categories covered under the Fair Employment and Housing Act (“FEHA”)—so it is no longer permissible to list only some protected categories and have a catch-all “or any other characteristic protected by law”;

·         states that the law prohibits coworkers, third parties, supervisors and managers from engaging in conduct prohibited by the FEHA;

·         creates a complaint process that ensures: confidentiality (to the extent possible under the circumstances); a timely response; impartial, fair, thorough, and timely investigation by qualified personnel; appropriate due process, documentation and tracking; that appropriate conclusions will be made and remedial actions will be taken, and timely closure;

·         provides a complaint mechanism that allows employees the option of complaining to an individual or entity other than his or her immediate supervisor;

·         instructs supervisors to report any complaints of misconduct to a designated company representative; and

·         makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in a workplace investigation.

Employers must also make their employees aware of their written anti-discrimination and harassment policy by doing one or more of the following: distributing copies of the policy with an acknowledgment form for employees to sign; posting the policy in the workplace; discussing the policies upon hire, or via another method that ensures employees receive and understand the policy.

Further, employers must translate the policy into every language that is spoken by at least 10 percent of its workforce.

Recordkeeping For Sexual Harassment Training

Employers are now required to keep documentation of sexual harassment training for a minimum of two years, including but not limited to, the names of the supervisory employees trained, the date of the training, the sign-in sheet, a copy of all certificates of attendance or completion issued, a copy of all written or recorded materials that comprise the training, and the name of the training provider.

Impact of New Regulations on Employers

Employers should update their anti-discrimination and harassment policies to ensure compliance with the new regulations.  Further, Employers should review their investigation procedures and institute any changes necessary to comply with the requirements described above.  Finally, employers should update their record retention policies to meet the new regulation’s recordkeeping requirements.

Pregnancy Disability Leave Regulations

Also effective April 1, 2016, employers must comply with new policy and notice requirements related to Pregnancy Disability Leave (“PDL”).

The California Department of Fair Employment and Housing has created a new poster, entitled “Your Rights and Obligations as a Pregnant Employee,” which replaces “Notice A,” a document previously used for providing PDL notice.  Employers can meet the new regulation’s posting requirements by posting this notice in a conspicuous place on its premises. While we recommend that employers post this notice in the workplace as soon as possible, the DFEH’s website states that employers will not be penalized if they do not post the new notice immediately upon April 1.

Further, when an employee provides an employer with notice of pregnancy or the need for leave or reasonable accommodation related to pregnancy, employers should provide the employee with the new “Your Rights and Obligations as a Pregnant Employee” notice, instead of the notice previously used by the employer.

Finally, employers are required to either (1) provide employees with notice of their PDL rights in the next version of their employee handbook or (2) send employees a notice of such rights on an annual basis.  We recommend including the notice of PDL rights in the employee handbook in order to avoid the administrative burden of distributing an additional annual notice.

Impact of New Regulations on Employers

As discussed above, we recommend posting the updated “Your Rights and Obligations as a Pregnant Employee” notice in the workplace as soon as possible.  Also, employers should ensure that they replace their old PDL notices with the “Your Rights and Obligations as a Pregnant Employee” document, and distribute this notice to relevant employees.  Additionally, when employers create the next edition of their employee handbook, we recommend ensuring that the new version contains a section notifying employees of their PDL rights that complies with the new regulations.

As always, Proskauer attorneys are available to answer any questions you may have and assist in updating handbooks and polices in order to comply with these new regulations.

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