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How to Comply with FEHA's new Anti-Discrimination and Harassment Policy Requirements

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On April 1, 2016, new regulations went into effect adding requirements for handling internal employee complaints.
Greg Keating, JD, a national authority in the area of whistleblowing and retaliation, will explain in detail the new anti-discrimination and harassment compliance requirements.

Published in: Recruiting & HR
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How to Comply with FEHA's new Anti-Discrimination and Harassment Policy Requirements

  1. 1. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Three Focus Areas for Compliance with California’s New FEHA Amendments April 14, 2016
  2. 2. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com P R E S E N T E D B Y Chief Compliance Officer & Senior Vice President, Advisory Services NAVEX Global Greg Keating Chair, Labor, Employment and Benefits and Whistleblower Defense Practice Groups Choate Hall & Stewart LLP Carrie Penman
  3. 3. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Agenda • Introduction to FEHA • Three Focus Areas For FEHA Compliance: 1. Updating Policies 2. Handling Complaints 3. Training & Education • U.S. DOL Proposed Guidelines for an Effective Compliance Program • Relevant Findings from NAVEX Global Hotline Report • Key Takeaways • Q&A
  4. 4. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Introduction to the California Fair Employment & Housing Act (FEHA)
  5. 5. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Polling Question Is your organization affected by the new FEHA requirements?  FEHA does affect my organization  I’m not sure whether FEHA affects my organization  FEHA does not affect my organization, but I anticipate the new requirements will be adopted more broadly and want to be prepared
  6. 6. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com The CA Fair Employment & Housing Act (FEHA) • Established in 1959 • FEHA prohibits harassment, discrimination and retaliation in the workplace in California • New FEHA Amendments went into effect on April 1, 2016 • The 2016 amendments are designed to: • Distill years of case law and best practices into concise user-friendly regulations • Offer guidance to businesses that would otherwise have to wade through and interpret vast amounts of fragmented and disjointed material to know how to comply • Eliminate ambiguity in the California Government Code
  7. 7. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Polling Question How did you first learn about the new FEHA requirements?  Our organization’s internal general counsel (GC)  Our organization’s outside legal firm  A notification from the state of California  Industry association  Industry publication or website  Colleague  NAVEX Global  Social media  Other (please specify in the chat window)
  8. 8. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Summary of New FEHA Regulations What has changed? The new regulations under California’s Fair Employment and Housing Act (FEHA) add requirements to companies’ policies, processes for handling complaints and mandatory harassment prevention training for supervisors. Who does it impact? All employers that conduct business in California—and have five or more employees—are covered by the new regulations. What do employers need to do? 1. Have a written policy on harassment, discrimination and retaliation prevention that includes specific details. 2. Establish a process and mechanism for receiving and handling complaints to ensure confidential, fair, thorough and independent investigations. 3. Update mandatory harassment training to reflect new requirements for supervisors and abusive conduct.
  9. 9. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Three Focus Areas for FEHA Compliance
  10. 10. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Focus Area 1: Updating Policies
  11. 11. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com FEHA Requirements: Policy Updates 1. Update anti-harassment, discrimination, retaliation and complaint- investigation policies to meet the specific requirements of the law 2. Provide the policy in multiple languages at worksites where 10% of the workforce primarily speaks a language other than English 3. Disseminate policies through one or more of the listed methods
  12. 12. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Summary of Requirements for Policy Updates 1. Policy must be in writing 2. Lists all current protected categories: Race, religion, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military/veteran status 3. Applies to coworkers, third parties, supervisors and managers with whom the employee comes into contact 4. Creates a complaint process with specific details (more on this later) 5. Provides a way to complain to someone other than a direct supervisor (more on this later) 6. Instructs supervisors to report to designated company representative 7. Indicates fair, timely and thorough investigation, due process and reasonable conclusions 8. States confidentiality kept to the extent possible, but not the investigation 9. Indicates appropriate remedial action will be taken if misconduct substantiated 10. Employee will not experience retaliation for reporting or participating in investigation Note: This is a summary—for exact language of the law, please refer to CA Government Code
  13. 13. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Requirements for Dissemination of Policies Dissemination of the policy shall include one or more of the following methods: 1. Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return 2. Sending the policy via email with an acknowledgment return form 3. Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies 4. Discussing policies upon hire and/or during a new hire orientation session and/or 5. Any other way that ensures employees receive and understand the policies
  14. 14. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Recommendations for Policy Updates 1. Review your policies on harassment, discrimination and retaliation with legal counsel to ensure they meet all requirements listed in the law 2. Update your “speak up” policy 3. Update confidentiality policies 4. If you need additional assistance, take advantage of policy writing services provided by NAVEX Global’s Advisory Services team 5. Consider a policy management software to streamline policy review, document policy changes, publish updates and automatically archive old policy versions
  15. 15. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Recommendations for Policy Translation 1. Determine which of your worksites require policy translations 2. Leverage outside services to help translate policies if needed, and get a legal review of any translated policies 3. Leverage the policy localization feature in PolicyTech to get rollup reporting for a policy published in multiple languages
  16. 16. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Recommendations for Policy Dissemination 1. Inventory all locations where your policies live and replace all old versions 2. Use software designed to ease the development and dissemination of policies and gather and track employee attestation to a particular policy version electronically 3. Deploy policies in live and online training sessions on harassment and discrimination 4. For clients currently using NAVEX Global courseware to deploy policies, contact your account executive about updating your policy within the course.
  17. 17. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Focus Area 2: Handling Complaints
  18. 18. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com FEHA Requirements: Establish a Complaint Process Create a complaint process to ensure that complaints 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 • Timely closures
  19. 19. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com FEHA Requirements: Provide a Complaint Mechanism Provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, 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, CCO or other supervisor; and/or • A complaint hotline; and/or • Access to an ombudsperson; and/or • Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints
  20. 20. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Recommendations for Handling Complaints 1. Deploy a third party hotline solution that allows employees to report potential ethics and FEHA compliance issues anonymously 2. Provide an easy way for employees to follow-up on their reports 3. Invest in an incident management solution that allows flexibility in configuring different workflows for different investigating departments 4. Provide managers with an online report form to submit complaints of harassment received by employees to a designated company representative 5. Train managers on when and how to use the report forms
  21. 21. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Focus Area 3: Training & Education
  22. 22. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com FEHA Training & Education Requirements 1. Update Sexual Harassment Prevention Training for supervisors under AB 1825 and AB 2053 to include additional content on supervisor obligations and abusive conduct 2. Keep documentation of training for two years 3. Provide learners with a link or directions to contact a trainer and ask questions 4. Maintain a record of all written questions received and written responses or guidance provided to employees for two years after the response
  23. 23. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com FEHA Requirements for Training Content: Supervisor Responsibilities New Obligations for Supervisor Training (excluding existing requirements) 1. Address how to identify behavior that may constitute unlawful harassment, discrimination, and/or retaliation under both California and federal law 2. Identify supervisors' obligation to report harassing, discriminatory or retaliatory behavior of which they become aware 3. In addition to discussing strategies to prevent harassment, cover the steps necessary to take appropriate remedial measures to correct harassing behavior, which includes an employer's obligation to conduct an effective workplace investigation of a harassment complaint
  24. 24. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Requirements for Training Content: Abusive Conduct 1. Review the definition of “abusive conduct” in the workplace 2. Explain the negative effects of abusive conduct on the victim and others in the workplace 3. Include information about the detrimental consequences on employers—including a reduction in productivity and morale 4. Specifically discuss the elements of “abusive conduct,” including conduct undertaken with malice that a reasonable person would find hostile or offensive and that is not related to an employer's legitimate business interests (including performance standards) 5. Examples of abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, 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 6. A single act shall not constitute abusive conduct, unless the act is especially severe or egregious 7. No requirement for training time dedicated to abusive conduct, but it must be covered meaningfully
  25. 25. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Polling Question Which of the following do you believe will be significant challenges for your organization with relation to new FEHA requirements? (Choose all that apply)  Policy Content Updates: Ensuring that the language we use in our policies is compliant  Policy Processes: Updates across locations, approval processes, tracking attestations, etc.  Policy Translation and Localization: Meeting regulations around customizing policies  Training Content: Making sure our training content covers legal requirements  Finding Training Time: Impact of additional requirements on seat time  Documenting and Tracking Training: Meeting requirements and ensuring legal defensibility  Other: Please specify in the chat window
  26. 26. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com FEHA Requirements for Documentation of Training To track compliance, an employer shall keep documentation of the training provided to its employees under this section for a minimum of two years, including but not limited to: • Names of the supervisors trained • Date of training • The sign-in sheet • Certificates of attendance or completion • The type of training • A copy of all written or recorded materials that comprise the training • The name of the training provider
  27. 27. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Best Practice Recommendations Recommendations for Updating Training Content • Update mandatory harassment training content to reflect new requirements, or  Ask your eLearning provider if your harassment courses meet the new requirements.  Consider NAVEX Global’s Workplace Harassment 6 online training course which is updated regularly to meet regulatory changes, and meets FEHA requirements Recommendations for Documenting & Tracking Training • In eLearning or webinar-based training, include a screen with instructions for submitting questions. • Track employee progress and completion of courses in a Learning Management System (LMS) • Maintain a copy of the course(s) delivered • Ensure that the LMS allows for data capture and reporting that can be audited and delivers organizational defensibility/withstands legal scrutiny
  28. 28. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com NAVEX Global’s Workplace Harassment Training
  29. 29. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com U.S. Department of Labor’s Proposed Guidelines for Effective Compliance Programs
  30. 30. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Best practices created by WPAC • WPAC established to advise, consult with, and make recommendations to the Secretary of Labor and OSHA • WPAC voted unanimously to recommend that Assistant Secretary, Dr. David Michaels, consider best practices and issue guidance consistent with them • Latest updates Whistleblower Protection Advisory Committee
  31. 31. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com WPAC’s Best Practice “Pillars” • The Role of Leadership • Fostering a “Speak Up” Culture • Implementing a Retaliation Response System • Anti-Retaliation Training • Monitoring Progress • Independent Audits & Program Improvements
  32. 32. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Relevant Findings from NAVEX Global’s 2016 Hotline Benchmarking Report
  33. 33. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Significant Increases in Case Closure Time Source: NAVEX Global's 2016 Ethics and Compliance Hotline Benchmark Report The median number of days to close HR, Diversity and Workplace Respect Cases was 47 days which is up from 39 days in the 2015 report
  34. 34. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Organizations Not Getting the Chance to Address Retaliation Allegations Internally Source: NAVEX Global's 2016 Ethics and Compliance Hotline Benchmark Report Less than 1 percent of all reports received by organizations are allegations of retaliation
  35. 35. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Retaliation Substantiation Rates Remain Elevated Source: NAVEX Global's 2016 Ethics and Compliance Hotline Benchmark Report
  36. 36. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Key Takeaways From Today’s Discussion
  37. 37. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Key Takeaways New California FEHA Requirements Require Employers to: 1. Review and update their anti-harassment, anti-discrimination and anti- retaliation policies, disseminate them and translate them appropriately 2. Establish a process and mechanism for handling complaints 3. Update mandatory sexual harassment and abusive conduct training for supervisors 4. Maintain training records and questions and responses related to training 5. Be prepared for additional requirements from U.S. Department of Labor coming soon
  38. 38. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com I’d Like To Talk With a NAVEX Global Solutions Expert About… Check all that apply  Scheduling a demo of NAVEX Global’s Workplace Harassment 6 compliance training course  Starting a free 30-day trial of PolicyTech to increase efficiency and defensibility of policy processes, including reviewing, approval and dissemination of policies  Making sure my policies are compliant with FEHA and other legal requirements  Determining the effectiveness of my current hotline and complaint process—or getting a these tools and processes in place  Configuring an incident management system for receiving and managing harassment complaints apart from the ethics hotline  A different issue or challenge / An immediate project I’d like help with
  39. 39. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com FEHA Resources & Solutions Resources: • Website: NAVEX Global’s Fair Employment Housing Act (FEHA) Web Resource • Legal Brief from Choate, Hall & Stewart LLP: New FEHA Regulations: Understanding California’s New Requirements for How Employers Handle Employee Complaints • Sample Policy: Global Anti-Harassment & Bullying Sample Policy • Blog Post: 8 Resources for Staying Compliant with New FEHA Harassment Laws Solutions: • Training: Directly address the new FEHA requirements around harassment and discrimination with our online training courses • Hotline: Meet the reporting and confidentiality requirements of the new FEHA regulations with our ethics hotline services • Policy Management: Manage and track your policies with confidence with our PolicyTech policy and procedure management solution—and meet localization requirements with the PolicyTech Localization Workflow Module • Policy Content Review: Our Advisory Services team provides policy writing and review services to help make sure you’re FEHA compliant
  40. 40. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Questions
  41. 41. © 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com© 2016 NAVEX Global, Inc. All Rights Reserved. www.navexglobal.com Thank You for Attending! Greg Keating Partner, Choate gkeating@choate.com Carrie Penman CCO & SVP, Advisory Services, NAVEX Global cpenman@navexglobal.com

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