Legal Alerts Mar 14, 2016

New FEHA Regulations Take Effect April 1

May Require Employers to Amend Their Existing Policies

New FEHA Regulations Take Effect April 1

New amendments to California’s Fair Employment and Housing Act regulations that go into effect on April 1 include changes to policies on discrimination, harassment and retaliation, pregnancy disability and others. The following are addressed by the new regulations:

Employer Anti-Discrimination, Harassment and Retaliation Policies
The new regulations require employers to develop written anti-discrimination, harassment and retaliation policies that contain the following elements:

  • 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.

The regulations require employers to 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.

The regulations also require employers whose workforce contains 10 percent or more employees whose primary language is not English to translate the policies into every language spoken by at least 10 percent of the workforce.

Pregnancy Disability Leave
The new regulations also clarify FEHA’s requirement to provide up to “four months” or “17 1/3 weeks” of Pregnancy Disability Leave. The regulations explain that “four months” leave is “the number of days the employee would normally work within four calendar months.” Therefore, 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.

In addition, the regulations 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.

Other Covered Topics
Other issues covered by the new regulations include an explanation of an employer’s duty to prevent and correct discriminatory or harassing conduct, more detailed rules relating to mandatory sexual harassment training, national origin discrimination regulations prohibiting discrimination against employees who hold special driver’s licenses that can be issued to undocumented workers, and regulations conforming to recent legislation regarding gender identity and religious creed discrimination.

If you have questions about the new regulations or would like to request review of your discrimination or harassment policies, contact the attorney authors of this Legal Alert listed to the right in the Labor & Employment  practice group, or your BB&K attorney.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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