Be Prepared for Calls from the DFEH Regarding Your Anti-Harassment PoliciesApril 23, 2018 – Client Alert
By Wendy Lane and Karina Sterman
The California Department of Fair Employment and Housing (DFEH) announced last week that it will commence random telephone interviews of employers about their anti-harassment and diversity policies. An outgrowth of the DFEH’s Task Force on the Prevention of Sexual Harassment in the Workplace, this is a well-intended but, not surprisingly, oddly executed effort “to develop a portrait of how California employers manage diversity and harassment issues.”
Employers will be asked about:
- policies on anti-discrimination, sexual harassment, and general anti-harassment policies,
- employer-sponsored trainings on harassment and diversity issues,
- recruiting programs for women and minorities, and
- harassment complaint procedures
Thus far, the DFEH has not indicated that participation will be mandatory. However, while the DFEH has indicated the employer names will not be recorded, we recommend managing the process in a way that minimizes risk. Specifically:
- Decide if you will agree to participate in the interview.
- If not, then make sure your managers and receptionists know that they are not authorized to represent the company in any survey call from the DFEH.
- If yes, pre-designate a person who is authorized to speak on behalf of the company during the interview, and make sure your managers and receptionists are informed of this. If the designated person is not ready or available when the call comes, say so and request to reschedule the call.
- Refresh your familiarity with and awareness of your internal anti-harassment and diversity policies.
To assess how you’re doing, review the DFEH’s Workplace Harassment Guide for California employees.
This is a good time to make sure your written policies against harassment are current.
If you have 50 or more employees, you should also make certain that all supervisors have received their mandatory sexual harassment training upon hire and re-training every two years. As a reminder, employers must keep documentation of this training for a minimum of two years. The training record should include:
- The name of the supervisor trained
- The training date
- The sign-in sheet
- A copy of all certificates of attendance or completion issued
- The training type
- A copy of all written or recorded materials that comprise the training
- The training provider’s name
If you provide e-learning training, you or your trainer must also maintain all written questions received and all written responses or guidance provided for a period of two years after the date of the response.
If you provide training via webinar, you must maintain a copy of the webinar, all written materials used by the trainer and all written questions submitted during the webinar. You must also document all written responses or guidance the trainer provided during the webinar.
Finally, please remember that training must now include instruction on the prevention of “abusive conduct” and, effective January 1, 2018, employer training must include a component discussing harassment based on gender identity, gender expression and sexual orientation.
Although employers with fewer than 50 employees are not mandated by law to provide harassment training, we urge all employers to consider providing such training given the increase in harassment complaints that are being filed and the enhanced enforcement efforts by the DFEH and EEOC.
Please contact a member of Greenberg Glusker's Employment Law Group should you have any questions.