The New California Regulations, Part I: Preventing and Correcting Wrongful Behavior
March 18, 2016
California’s Office of Administrative Law approved regulations drafted by the California Fair Employment and Housing Council. These new regulations, covering the entire gamut of employment law topics within the Fair Employment and Housing Act (FEHA), touch on almost every aspect of employment law and will go into effect on April 1, 2016.
In this blog series, we will highlight some of the most significant aspects of the regulations that clarify an employer’s obligations in the workplace. The first topic, which we will cover here, is an employer’s obligation to take all reasonable steps to prevent and correct wrongful behavior in the workplace.
The new regulations add an entirely new section—namely section 11023—to the California Code of Regulations. Section 11023 provides guidance to employers as to their affirmative duty to prevent and correct discriminatory, harassing, and retaliatory conduct in the workplace.
In California, an employer’s duty to take reasonable steps to prevent and correct wrongful behavior is an affirmative duty (whereas in other jurisdictions, prevention and correction provides employers with a legal defense to discrimination, harassment, and retaliation claims). Employees who bring discrimination, harassment, or retaliation claims in California typically include a separate cause of action in their lawsuits accusing employers of failing to take these reasonable steps. Thus, the distinction between an affirmative duty and a legal defense is important because liability on FEHA’s imposition of an affirmative duty often increases damages awards. The good news is that employers can take steps to make sure they are meeting the prevent-and-correct requirements.
The regulations clarify employers’ affirmative duty by first covering how to prevent discrimination, harassment, and retaliation in the workplace and next covering ways to correct these issues. In short, the affirmative duty imposes two requirements on employers:
- Communicate your rules to your employees (i.e., draft a policy).
- Make sure that employees are aware of these rules (i.e., distribute the policy).
- Follow your policy.
- Make sure you comply with training requirements.
- Provide a way for employees to provide input (i.e., create an effective complaint mechanism).
- Look into employees’ concerns (i.e., develop a system to conduct fair, thorough, and timely investigations).
- Be fair to all sides (i.e., provide due process in your investigations).
- Take corrective measures if warranted (i.e., in the event that you identify a problem, fix it).
Creating a Policy
The newly added regulations require every employer to develop a written sexual harassment policy that includes the following information:
- a list of protected categories;
- a prohibition on unlawful conduct;
- instructions to supervisors to report misconduct;
- a flexible complaint mechanism (i.e., one that permits an employee to make a complaint to his or her supervisor, but that does not make this the only method of making a complaint);
- a statement that the employer will conduct a fair, timely, and thorough investigation into complaints of misconduct;
- an statement that investigations will provide all parties involved with fairness (due process) and will reach reasonable conclusions; and
- clarification that an employee will not be exposed to retaliation for making a complaint or participating in the investigation of a complaint.
Cal. Code Reg. Section 11023 (b)(1)-(10).
In addition, if 10 percent or more of the employer’s workforce speaks a language other than English, the employer must translate its policy into that language.
Disseminating the Policy
Once the employer has a policy detailing this information, the policy should be distributed via hard copy document, e-mail, or intranet site, coupled with an employee acknowledgment form. Cal. Code Reg. Section 11023(c)(1)-(3). Employers may also discuss these policies upon hire and/or during a new-hire orientation session, or may use any other means to ensure employees receive and understand the policy. Id. at (c)(4), (5).
Employers with 50 or more employees must provide anti-harassment training. The new regulations include additional language regarding these training requirements, the details of which will be covered in a future installment of this blog series.
Although employers are expected to take steps to prevent wrongful behavior from occurring in the first place, at some point employees or supervisors might engage in such behavior and an employer will need to take steps to correct it.
Providing a Complaint Mechanism
The first step a company should take to comply with this requirement is to provide employees with an effective complaint mechanism. The new regulations make it clear that while employees can and should be allowed to file complaints with an immediate supervisor, this should not be the only avenue offered for lodging concerns. The complaint mechanism must provide multiple avenues that might include direct communication (orally or in writing) with a designated company representative, such as someone in the human resources department or an equal employment opportunity officer; providing access to a complaint hotline; providing access to an ombudsperson; and providing contact information for the Department of Fair Employment and Housing (DFEH) and/or the U.S. Equal Employment Opportunity Commission (EEOC). Cal. Code Reg. Section 10023(b)(5)(A)-(E). The type of avenues offered will, of course, depend on the size of the company and available resources, but all employers should provide various ways for employees to bring concerns to the attention of management so that the concerns can be investigated and resolved.
Investigating and Resolving Wrongful Behavior
Once the employer receives a complaint of misconduct, it has an obligation to conduct an investigation into the complaint. Employers should keep in mind the following for conducting an effective investigation:
- Employers should keep the process confidential to the extent possible. Moreover, employers should not promise complete confidentiality since that promise would make it impossible to look into the issue, but a promise of limited confidentiality will ensure that the complainant understands that information provided will only be shared as needed to look into and resolve his or her complaint.
- The employer must promptly look into the complaint.
- The investigation must include documentation that tracks reasonable progress.
- The investigation must be fair—all parties must be afforded due process. All parties should have an opportunity to participate in the process and provide information and/or responses.
- The investigation must be thorough, and the conclusions reached must be reasonable and based on the evidence collected during the investigation.
- To the extent the investigation uncovers wrongful behavior, the employer must institute appropriate remedial measures.
- The regulations require employers to take some remedial measure to solve issues, even if the conduct identified does not rise to the level of unlawful conduct. This is because the purpose of the investigation requirement is to uncover possible misconduct, not just unlawful conduct. Of course, if the wrongdoing found is minimal, the severity of the remedial measure should be commensurate with the wrongdoing found, and should be tailored to prevent the behavior from recurring. From a litigation perspective, this requirement to uncover possible misconduct and not just unlawful conduct does not affect an employer’s ability to avoid legal liability for “failure to take steps” if there is a finding harassment, discrimination, or retaliation has not occurred.
Takeaways for Employers
Although the language in this section of the regulations is new, it is restating common sense principles for employers to follow: Have a policy, distribute it, follow it, provide a flexible complaint mechanism, look into complaints, and resolve problems when you identify them. Following these steps will go a long way toward helping employers avoid lawsuits.
In advance of the April 1 effective date of these new detailed requirements on employers’ discrimination and harassment obligations, employers should start preparing now by revising their written policies and procedures to comply with the new regulations. Join our speaker Douglas J. Farmer (shareholder, San Francisco) for a timely webinar that will cover the essential information employers need to know about the new regulations, including how the rules have changed, what the rules mean for California employers, and the next steps to ensure that their policies comply. Register for “It’s Time for a Policy Checkup: New California Discrimination and Harassment Policy Requirements Take Effect April 1,” which will take place on Wednesday, March 30, 2016 at 11:00 a.m. Pacific, on our webinar page.
Part two of this series on the California Fair Employment and Housing Council’s new regulations will include a review of numerous definitions, , including the regulations’ definitions for “transgender,” “gender expression,” and “gender identity.”
Patti C. Perez, a member of the California Fair Employment and Housing Council, is a shareholder in the San Diego office of Ogletree Deakins.
Andrea L. Fellion is an associate in the San Francisco office of Ogletree Deakins and advises employers on California law compliance and represents employers in litigation.