Businesses with at least five employees must have a written anti-discrimination and anti-harassment policy by April 1, under new regulations the Fair Employment and Housing Administration adopted in December 2015.
What does five employees mean? Under the new regulations, out-of-state employees count toward the five-employee requirement. So any company that has a small office in California – which may have fewer than five employees – nevertheless falls under the regulations. Also under the new regulations, the policy must:
- List all protected categories covered by law
- Make clear that coworkers, third parties, supervisors and managers may not engage in discriminatory, harassing or retaliatory conduct
- Create a comprehensive complaint process both for making complaints and dealing with them in a timely and impartial manner. That means:
- Employers must provide multiple avenues – beyond the employee’s immediate supervisor – for making complaints. That could include an ombudsman, a human resources manager, a hotline, and contact information for the Department of Fair Employment and Housing and/or the U.S. Equal Employment Opportunity Commission.
- Supervisors must be instructed to report complaints to a designated representative to try to resolve the claim internally.
- Employers must have qualified personnel conduct an investigation that is timely and impartial, includes appropriate options for remedial actions and resolutions, and is documented and tracked.
- Employer policies must also prohibit any retaliation for lodging a complaint or participating in any workplace investigation.
The policy must be disseminated to all employees in one of the following ways:
- In writing, with the employee signing an acknowledgement of receipt
- By email, also with an acknowledgement of receipt
- By posting online, using a method that allows the employers to show that every employee read and acknowledged receipt of the policy.
The policy must also be discussed with new employees when they are hired. If 10 percent of the workforce speaks a language other than English, the policy must be translated into that language.
Every two years, employers with 50 or more employees are required to provide anti-harassment training to all supervisors. If a new supervisor is hired or promoted, the training must follow within six months. That training must include a component on preventing abusive conduct, which is defined as conduct that is objectively hostile, offensive and unrelated to an employer’s legitimate business interests. The training must also include interactive components, such as quizzes or small group discussions.
Training must be conducted by an attorney, law school instructor, human resources professional or a harassment prevention consultant.
If you don’t have a policy in place, contact Johnson Employment Law for guidance at (949) 238-8044.