UPDATE WRITTEN POLICIES TO COMPLY WITH NEW FEHA REGULATIONS REGARDING HARASSMENT AND DISCRIMINATION
The California State Legislature and various State agencies continue to expand employer responsibilities and duties. In case you missed it, effective April 1, 2016, (and pursuant to new regulations promulgated by the Fair Employment and Housing Council) all California employers with five or more employees must create detailed written policies for preventing harassment, discrimination, and retaliation. The written policy, among other items, must: (1) list all protected groups under the Fair Employment and Housing Act; (2) allow employees to report claims to someone other than a direct supervisor; (3) instruct supervisors to report all complaints; and (4) state that all complaints will be followed by a fair, complete, and timely investigation.
Why should you care about the new FEHA regulation? Well, the California Supreme Court in Brinker Restaurant Corporation v. Superior Court held that class action certification may be appropriate when an employer fails to enact policies, or when the employer has policies that are non-compliant with existing laws or regulations. Therefore, to the extent that you fail to create the above required written policy, and to the extent you are subsequently sued via class action by a disgruntled employee alleging your company systemically failed to prevent harassment (e.g. there was no way to report harassment), your failing to have a written policy comporting with the new FEHA regulation may tip the scales and cause the court to certify the class action—something you want to avoid at all costs.
Therefore, it is a good idea to review your written policies and procedures (including your employment manual) on at least an annual basis to ensure that your written policies comply with all California laws and regulations, including all wage and hour laws and anti-discrimination regulations.
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