LABOR & EMPLOYMENT LAWYERS
March 21, 2016
Implementing new anti-harassment regulations effective April 1, 2016
The Department of Fair Employment and Housing (DFEH) has amended its regulations effective April 1, 2016. The most important changes concern the anti-harassment policy employers must have in place. They require that the policy must be in writing; list all protected categories; indicate that it applies to coworkers, supervisors, and third parties; require supervisors to report complaints; prohibit retaliation; create an effective and complaint and investigation process and result in appropriate discipline.
The changes are not drastic—much of what they require has already been in place, and most employers’ policies already largely comply. To comply, however, employers must provide a copy of their policy to employees via hard copy, email, or intranet, and get acknowledgement that employees have received it.
Our firm has revised the standard policy we generally recommend that employers adopt, either as a stand-alone policy or as part of an employee handbook. Here it is:
A. No discrimination. It is [employer name]’s policy to provide equal employment opportunity for all applicants and employees. ___________ does not discriminate on the basis of race, color, religion, sex (including pregnancy, childbirth, or related medical conditions), national origin, ancestry, age, physical disability, mental disability, medical condition, military or veteran status, marital status, sexual orientation, gender, gender identity, gender expression, or any other basis protected by state or federal laws.
This policy applies to all areas of employment including recruitment, hiring, training, promotion, compensation, benefits, transfer, and social and recreational programs. It is the responsibility of every manager and employee to conscientiously follow this policy.
B. No harassment. ___________ is committed to providing a workplace free of sexual harassment (which includes harassment based on sex, pregnancy, childbirth, or related medical conditions), as well as harassment based on race, color, religion, sex (including pregnancy, childbirth, or related medical conditions), national origin, ancestry, age, physical disability, mental disability, medical condition, military or veteran status, marital status, sexual orientation, gender, gender identity, gender expression, or any other basis protected by state or federal laws.
___________ strongly disapproves of and does not tolerate harassment of employees by managers, supervisors, or co‑workers. Similarly, ___________ will not tolerate harassment by its employees of non‑employees with whom our employees have a business, service, or professional relationship. The law prohibits coworkers and third parties, as well as supervisors and managers, from engaging in discrimination, harassment, and retaliation on any basis enumerated above.
Harassment includes verbal, physical, and visual conduct that creates an intimidating, offensive, or hostile working environment or that interferes with work performance. Such conduct constitutes harassment when (1) submission to the conduct is made either an explicit or implicit condition of employment; (2) submission to or rejection of the conduct is used as the basis for an employment decision; or (3) the harassment interferes with an employee’s work performance or creates an intimidating, hostile, or offensive work environment.
Harassing conduct can take many forms and includes, but is not limited to, the following: slurs, jokes, statements, gestures, assault, impeding or blocking another’s movement or otherwise physically interfering with normal work, and pictures, drawings, or cartoons based upon an employee’s sex, pregnancy, childbirth, or related medical conditions), as well as harassment based on race, color, religion, sex (including pregnancy, childbirth, or related medical conditions), national origin, ancestry, age, physical disability, mental disability, medical condition, military or veteran status, marital status, sexual orientation, gender, gender identity, gender expression, or any other basis protected by state or federal laws.
Sexually harassing conduct in particular includes all of these prohibited actions as well as other unwelcome conduct such as requests for sexual favors, conversation containing sexual comments, and unwelcome sexual advances.
C. Complaint process. Any incident of harassment, including work‑related harassment by any ___________ personnel or any other person, should be reported promptly to the [designated person, e.g.: HR Director; General Manager], who is responsible for investigating the matter. Managers or supervisors who receive complaints or who observe harassing conduct should inform the [designated person] immediately. An employee is not required to complain first to his or her supervisor (whether or not that supervisor is the individual who is claimed to be harassing the employee).
Every reported complaint of harassment will be investigated thoroughly, promptly, impartially, and, to the extent possible, in a confidential manner. If misconduct is established, appropriate remedial measures will be taken. Disciplinary action for a violation of this policy can range from verbal or written warnings up to and including immediate termination, depending upon the circumstances.
D. No retaliation. ___________ will not tolerate retaliation against any employee for cooperating in an investigation or for making a complaint to the [________] or any other manager. This prohibition applies to any and all investigations and complaints related to unlawful or potentially unlawful conduct, such as discrimination and harassment, wage and hour law violations, unsafe working conditions, or violation of privacy or anti-bribery laws or regulations. Retaliation against employees for exercising their rights, such as requesting legally mandated leaves, is also prohibited.
[ OPTIONAL: All newly hired employees are given an initial training on sexual harassment when they join the company. All employees must attend regular refresher training. The trainings explain what sexual harassment is, how to be aware of conduct that could give offense, how to use the company’s complaint procedures, how investigations are conducted, how the company treats non-employee harassment, how to prevent discrimination and retaliation, and other important issues. [Required in California for employers with 50+employees: All supervisors receive intensive, interactive classroom training covering harassment, discrimination, and retaliation at least every two (2) years, as well as within six (6) months of the time they become supervisors.]
E. EEOC/DFEH. Harassment on the bases enumerated above, and retaliation for opposing harassment or participating in investigations of harassment, or in proceedings or hearings conducted by the Department of Fair Employment and Housing (DFEH) or Equal Employment Opportunity Commission (EEOC), are illegal. In addition to the internal process for investigation and resolution, an employee has the right to complain to the DFEH at the state level and the EEOC on the federal level. To contact the DFEH, consult your local telephone directory under State Government Offices; also www.dfeh.ca.gov. To contact the EEOC, consult your local telephone directory under U.S. Government Offices; also www. eeoc.gov. These agencies have the power to order reinstatement and other remedies and to award monetary damages.
January 7, 2015
Important New Employment Laws Effective in 2015
A. State-wide paid sick leave.
Effective July 1, 2015, all California employers will be required to provide paid sick leave in accordance with the Healthy Workplace, Healthy Families Act of 2014. San Francisco employers have been required to provide paid sick leave since 2007. The new state law does not replace the San Francisco ordinance. Where the laws differ, the more generous law will apply. This summary covers key differences.
1. Application to employers with existing policies. Employers who already provide the required amount of sick time under their sick leave or paid time off policies, and whose policies satisfy the accrual, carryover and use requirements of the new law, will not be required to provide additional time off. And, they can avoid having to satisfy these requirements altogether if they provide at least 24 hours (or 3 days) of paid sick leave or paid time off in each year of employment (or calendar year or on a 12-month basis)—i.e., if the employee gets at least 24 hours (or 3 days) at the beginning of each year. They will still, however, be required to comply with the notice and record-keeping provisions of the new law.
2. Who is covered? Employers of all size, and all employees who work in California for 30 or more days within a year after commencing employment.
San Francisco: All employers, and all employees who perform work in SF, regardless of the number of hours.
3. How much paid sick leave accrues? Employees accrue (earn) one hour of sick pay for every 30 hours worked. The same applies to employees covered by the SF ordinance. Exempt employees are presumed to work 40 hours a week for accrual purposes; if they don’t, accrual will be based on their normal workweek.
4. When does accrual begin? Employees begin to accrue July 1.
San Francisco: accrual begins 90 days after employment begins.
5. Caps on accrual and carry-forward? Employers may cap (limit) accrual at 48 hours (or 6 days). Time that has accrued and not used may be carried forward.
San Francisco: The accrual limit depends on the size of the employer; an employer with 10 or fewer employees (within the company as a whole) may limit accrual at 40 hours, larger ones at 72 hours.
6. Limits on use of accrued time? Employers may limit the use of sick leave to 24 hours (or 3 days) in each year of employment. San Francisco: No limit on use.
7. At what rate is sick leave paid and when? The leave must be paid at the regular hourly wage, not later than the payday for the next regular payroll after the sick leave is taken. Unused time is not cashed out at employment termination. Employees who are re-hired within a year will have their previously accrued and unused time reinstated.
8. For what purposes may the time be used? Employees may use the time for their own medical needs (diagnosis, treatment, preventive care), or for those of a “family member,” defined broadly: children, parents, siblings, grandparents, grandchildren, and spouse/domestic partner. Sick leave may also be used for an employee who is a victim of domestic violence, sexual assault, or stalking.
9. Is there a minimum increment? Employers may require the time to be used in two-hour increments or more. San Francisco: one-hour increments or more.
10. May employers require advance notice? Yes, if the sick leave is foreseeable. notification.
11. May employers require a doctor’s note? The state law is silent on this (meaning, we believe, that it is permitted under reasonable circumstances). San Francisco permits it for an absence of more than 3 consecutive work days.
12. What notification must employers provide? (a) At the time of hire, employers must notify employees of their right to accrue and use paid sick leave as part of the required pay-related notice; see link to Labor Commissioner’s poster); (b) each pay period, the employer must provide employees with notice of the amount of paid sick leave available to them; this can be part of the itemized wage statement or a separate document.
13. Retaliation protection and enforcement. The law prohibits discrimination or retaliation against employees for using accrued sick days or filing a complaint. The Labor Commissioner may enforce the law by awarding reinstatement, back pay, and payment of sick days unlawfully withheld, plus an administrative penalty of up to $4,000.
B. Employers and their labor suppliers now share certain responsibilities.
Labor Code section 2810 prohibits employers in certain industries (such as construction, security guards, warehouse, janitorial) to enter into contracts for labor or services when they know or should know that the contract does not provide sufficient funds for the contractors to comply with wage and hour laws. Effective January 1, 2015, new section 2810.3 requires employers who contract for labor (“client employers”) with such entities as staffing agencies to share with their contractors the legal responsibility and liability for the payment of wages and for the failure to obtain workers’ compensation insurance coverage.
The law applies to employers with a total workforce of 25 or more workers (including those hired directly), or those who obtain 5 or more workers from a contractor at any given time. It does not apply to exempt employees. The workers must be engaged in the client employer’s usual and customary work or business, performed on its premises.
C. Supervisor training includes prevention of “abusive conduct.”
California require employers with more than 50 employees to provide discrimination, harassment, and retaliation training to supervisors. New Government Code section 12950.1 requires that training to include the prevention of “abusive conduct,” defined as: “repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” A “single act shall not constitute abusive conduct, unless especially severe and egregious.”
The definition of “abusive conduct” is not tied to protected categories such as gender or race—it is more akin to “bullying.” Although all supervisors must be trained to prevent bullying, the law does not prohibit “abusive conduct” unless it is based on a protected category.
D. Restrictions related to drivers’ licenses.
California’s Vehicle Code section 12801.9 requires the DMV to issue a license to people who are not in the country legally, if they otherwise qualify for the license. Such licenses state that the license does not establish eligibility for employment (or voting or receiving public benefits). Now, the Fair Employment and Housing Act is amended to provide that national origin discrimination includes discrimination because of the possession of such a driver’s license.
This law also makes it a violation of FEHA to require a person to present a driver’s license, unless possessing a license is required by law (such as showing a license to confirm eligibility to work) or the employer requires it for legitimate reason (the job requires driving).
E. The employment protections of the FEHA now cover interns too.
F. 2015 minimum wages: SF-$11.05; Oakland--$12.25; San Jose--$10.30.
Please call if you have questions or seek further information about these laws.