New FEHA Regulations Take Effect April 1
New regulations under the California Fair Employment and Housing Act (FEHA), that go into effect on April 1, 2016, require employers of five or more employees to 1) update anti-discrimination, anti-harassment, and complaint-investigation policies; 2) update sexual harassment prevention training; 3) disseminate and track receipt of the new policies and future training sessions; 4) provide pregnancy disability leave; and 5) provide the new policies in multiple languages where 10% of the workforce primarily speak a language other than English.
Highlights of the new regulations are summarized below.
Employer Anti-Discrimination, Harassment and Retaliation Policies
The new regulations require employers to develop written anti-discrimination, harassment and retaliation policies that provide the following:
- List the categories of individuals protected by FEHA.
- Explain that FEHA forbids co-workers, third parties, supervisors and managers from engaging in discriminatory, harassing or retaliatory conduct.
- Provide a confidential, timely, impartial complaint process that provides for appropriate remedial action and resolution.
- Establish a complaint procedure, like a hotline or ombudsman, that does not require employees to directly complain to an immediate supervisor.
- Instruct supervisors to report complaints to a designated representative.
- Make clear that allegations will be address fairly, timely and confidentially (to the extent possible).
Indicate that appropriate remedial measures will be taken if misconduct is found.
- Explain that the employer will not retaliate against employees for complaining or participating in an investigation.
- Employers must disseminate the policies, either by providing a copy in person or by email to all employees with an acknowledgment form to sign, posting the policies on a company intranet site, or discussing the policies with new hires.
Pregnancy Disability Leave
California law protects employees against discrimination or harassment because of pregnancy, childbirth or any related medical condition. The new regulations clarify FEHA's requirement to provide up to “four months” or “17 1/3 weeks” of Pregnancy Disability Leave (PDL). The regulations explain that “four months” leave is “the number of days the employee would normally work within four calendar months.” To determine an employee's leave entitlement, the employer multiplies the average hours an employee works per week by 17 1/3 weeks. The number of hours individual employees are entitled to take off will vary depending on the employee's work schedule.
The new regulations also provide guidance on accounting for time when using intermittent leave. When employees use PDL intermittently, or use it to work a reduced schedule, the employer may account for leave in increments no greater than the shortest period of time the employer uses to calculate other types of leave, up to one hour. The regulations also make clear that employees are eligible for up to four months of PDL per pregnancy, not per year.
The regulations mandate that employers have a process for investigating complaints of discrimination, harassment, and retaliation that provides for:
- Confidentiality, to the extent possible;
- A timely response;
- An impartial investigation by a qualified investigator;
- Documentation and tracking;
- Appropriate options for remedial actions/resolutions; and
- Timely closure.
All employers employing five or more employees must post and keep posted the notice of employee rights effective April 1, 2016. It should be located in a conspicuous place where employees can easily read it. Electronic posting is permitted, as long as the notice is posted in a conspicuous place or places where employees would tend to view it in the workplace.
In addition, employers are required to give an employee a copy of the notice as soon as practicable after the employee tells the employer of her pregnancy. Additional descriptions of the types of leaves and accommodations offered must also be included in employee handbooks. This includes additional rights under the California Family Rights Act and/or the federal Family and Medical Leave Act (note: these statutes also contain separate posting and notice requirements).
Also, a covered employer whose workforce at any facility or establishment is comprised of 10 percent or more persons whose spoken language is not English must translate the notice into every language that is spoken by at least 10 percent of the workforce.
Questions about the California Fair Employment and Housing Act?
An experienced California employment lawyer can quickly answer your questions about FEHA. To discuss new regulations, or any of California's wage and hour laws, feel free to contact leading California employment lawyers at Kingsley & Kingsley. Call toll-free at (888) 500-8469 or click here to contact us via email.