Articles

Employer Alert: Time to Update Your Harassment Prevention Policy

March 25, 2016

by Eileen P. Kennedy

Employers have long been advised to maintain a written harassment prevention policy and to enforce it.  Such policies typically define and prohibit unlawful harassment, discrimination, and retaliation, explain the steps to prevent against this unlawful conduct, and include an internal complaint procedure.  But as of April 1, 2016, these written policies may no longer be sufficient.  

The Department of Fair Employment & Housing (“DFEH”) promulgated new regulations not only requiring that a harassment prevention policy be in writing, but also setting forth over ten specific items that the policy must include.  The new regulations also contain an obligation to translate the policy when at least 10% of the workforce speaks a language other than English as the primary spoken language.  Now is a good time to ensure that your company policy contains all the required contents and that it has been properly disseminated.  

A Compliant Harassment Prevention Policy Contains:

  • A list of all current protected categories covered under the Fair Employment and Housing Act (“FEHA”);
  • A statement that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by FEHA;
  • A complaint process that ensures that all complaints of violations of the policy receive:
  • An employer’s designation of confidentiality, to the extent possible;
    • A timely response;
    • Impartial and timely investigations by qualified personnel;
    • Documentation and tracking for reasonable progress;
    • Appropriate options for remedial actions and resolutions; and
    • Timely closures.
  • A complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, but allows complaints to, but not limited to, the following:
    • Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
    • A complaint hotline; and/or
    • Access to an ombudsperson; and/or
    • Identification of the DFEH and the U.S. Equal Employment Opportunity Commission as additional avenues for employees to lodge complaints.
  • An instruction that supervisors report any complaints of violations of the policy to a designated company representative, such as a human resources manager. 
  • An indication that when an employer receives allegations of a violation of the policy, it will conduct a fair, timely, and thorough investigation; that the investigation provides all parties appropriate due process; and that as a result of the investigation, a reasonable conclusion is reached based on the evidence collected. 
  • A statement that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.
  • An indication that if at the end of the investigation unlawful harassment, discrimination or retaliation is found, appropriate remedial measures shall be taken.
  • A clear statement that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Dissemination of the Harassment Prevention Policy
The DFEH regulations require employers to translate the policy into any language spoken by at least 10% of your company’s workforce if the language is other than English and is the primary spoken language.  To distribute the policy, do one or more of the following: (1) print and provide a copy to all employees with an acknowledgment form for the employee to sign and return; (2) send the written policy via e-mail with an acknowledgment return form; (3) post the current versions of the policy on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;(4) discuss the policy upon hire and/or during a new hire orientation session; and/or (5) disseminate by any other way that ensures employees receive and understand the policies.  A best practice is to ensure that your company’s employees have signed an acknowledgment of receipt of your company’s policy (which should be maintained in the employee’s personnel file) and have been given a copy of or have access to the policy.  

New Record Keeping Requirements for Prevention of Sexual Harassment Trainings 
For those employers with 50 or more employees, the DFEH’s new regulations require that such employers maintain records of all mandatory supervisor trainings on the prevention of sexual harassment for a minimum period of two years in order to track compliance.  The records should include the names of the supervisory employees trained, the date of training, the sign in sheet, a copy of all certificates of attendance or completion issued, the type of training, a copy of all written or recorded materials that comprise the training, and the name of the training provider.  

If you have questions about how this development impacts your business, please call our main number, 408-286-5800 or email one of Berliner Cohen LLP’s employment attorneys.

Christine H. Long, christine.long@berliner.com

Susan E. Bishop, susan.bishop@berliner.com

Eileen P. Kennedy, eileen.kennedy@berliner.com

Jennifer Y. Leung, jennifer.leung@berliner.com

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