In California, nearly 8 million of the state’s 40 million residents have a criminal record.  Research has shown that when individuals with criminal records have access to gainful employment, it helps reduce recidivism.  However, these individuals often face barriers to employment.

That is why on October 20, 2021, the California Department of Fair Employment and Housing (DFEH) announced that it is now utilizing technology to identify and enforce violations of the Fair Chance Act – a “Ban the Box” law seeking to reduce barriers to employment for individuals with criminal records.

According to the DFEH, this technology allows them to mass-search online job advertisements for statements in violation of the Act.  Particularly, it targets statements saying that the employer will not consider job applicants with a criminal record.  If the search discovers an unlawful statement, the DFEH then sends a notice to the employer to remove the statement.  According to the DFEH, during a one-day test, the mass-search tool discovered over 500 job advertisements using unlawful statements.  This new enforcement technology should prompt employers to review their job advertisements to ensure they comply with the Fair Chance Act.

The Fair Chance Act

The California Fair Chance Act, codified as section 12952 in the Government Code, went into effect on January 1, 2018.  The Act repealed Labor Code section 432.9, which prohibited only public employers from asking job applicants about their criminal conviction history before determining whether the applicant met the minimum employment requirements, and instead broadened this prohibition.  Now under the Act, this prohibition applies to both public and private employers with five or more employees.  However, some exceptions apply.  For instance, the Act does not apply to job positions for which another law requires the employer to conduct background checks or to restrict employment based on criminal history.[1]

As noted, the goal of this Act is to help individuals with conviction histories obtain gainful employment in order to support themselves and reduce their chance of recidivating.  Therefore, to help achieve this goal, the Act makes it unlawful for an employer to:[2]

  • Include on a job application, any questions seeking disclosure of an applicant’s conviction history.
  • Ask about or consider an applicant’s conviction history before the employer makes a conditional job offer.
  • Consider, distribute, or disseminate (while conducting a conviction history background check), information about arrests not followed by conviction, referrals to or participation in pretrial or post-trial diversion programs, and convictions that have been dismissed, sealed, expunged, or statutorily eradicated.

As a result, employers must be cognizant of the language they use in their job advertisements.  Blanket statements such as “No felons” or “Must have a clean record” would violate the Act.

Therefore, LCW encourages employers to reach out to ensure their job advertisements and hiring practices comply with the Fair Chance Act.

[1] Cal. Gov. Code 12952 (d).

[2] Cal. Gov. Code 12952 (a).

AB 89, also known as the Peace Officers Education and Age Conditions for Employment, or “PEACE” Act, went into effect on January 1, 2022.

The most straightforward piece of that legislation was Government Code section 1031.4, which raises the minimum age for most peace officer employment from 18 to 21.  This is a current requirement for new hires, but does not affect officers who were hired or cadets who were in the academy by the end of 2021.  The new age minimum does not apply to custodial officers, park rangers, housing authority patrol officers, security officers, welfare fraud investigators, child support investigators, court service officers or marshals, arson investigators, voluntary fire wardens, and other assorted peace officers whose duties differ from traditional local policing.

The Legislature, in imposing this requirement, made a connection between increasing the minimum age of peace officers, and the aim of minimizing the use of deadly force.  It noted that it has “repeatedly relied on neurological research with respect to criminal sentencing law reflecting a growing understanding that cognitive brain development continues well beyond age 18 and into early adulthood.  Scientific evidence on young adult development and neuroscience shows that certain areas of the brain, particularly those affecting judgment and decisonmaking, do not develop until the early to mid-20s.”  The Legislature continued by noting that law enforcement officers are required to make split-second decisions in dangerous situations, and that a young adult whose brain is still developing may struggle to make quick judgments.

AB 89 also creates Penal Code section 13511.1, which takes steps towards a goal of imposing new minimum educational requirements to be hired as a peace officer, of either a bachelor’s degree or a “modern policing” degree from a California community college, but appears to stumble.

In support of this goal, the Legislature noted that “a study has shown that better educated officers perform better in the academy, receive higher supervisor evaluations, have fewer disciplinary problems and accidents, are assaulted less often, and miss fewer days of work than their counterparts.”

Penal Code section 13511.1 requires the office of the Chancellor of the California Community Colleges to submit a report to the Legislature by June 1, 2023 making recommendations regarding this “modern policing” degree program.  POST, stakeholders from law enforcement, including both management and employee representatives, California State University, including administration and faculty, and community organizations are to serve as advisors to the Office of the Chancellor.

There are some specific requirements for the Chancellor’s recommendations:

  • First, the modern policing degree must focus on courses pertinent to law enforcement, which the Legislature determined shall include, but not be limited to, psychology, communications, history, ethnic studies, law, and courses determined to help develop necessary critical thinking skills and emotional intelligence. These course areas are generally consistent with the required curriculum for a college degree in criminal justice at institutions such as Marymount California University and California State University-Los Angeles.
  • Second, the recommendations must include allowances for prior law enforcement experience, work experience, postsecondary education, or military experience to satisfy the minimum eligibility requirement for peace officer employment. It is not clear if experience could qualify for credit toward a degree — the recommendation is that experience will count toward the eligibility requirement, as opposed to the degree, but the statute also seeks to establish a degree as an eligibility requirement.
  • Third, the recommendations must recommend that the modern policing degree or a bachelor’s degree be adopted as minimum education requirements for employment of a peace officer. POST has no discretion to make a different recommendation.  It is not clear why the Legislature mandated POST to make this recommendation to the Legislature rather than enacting the minimum education requirement itself.
  • Fourth¸ they must include recommendations to adopt financial assistance for students of historically underserved and disadvantaged communities with barriers to higher education.

As of March 29, 2022, the only mention of this program on the Chancellor’s website is an item on the agenda for the Board of Governors of the community colleges’ March 21 meeting, indicating that the Chancellor’s office circulated a survey to the colleges on this and other issues to campus policing, and received responses from less than 14% of the colleges.

The statute next requires that, within two years of the submission of the recommendations to the Legislature, POST “shall” approve and adopt education criteria “based on” the Chancellor’s recommendation – which must recommend a minimum requirement of either the modern policing degree or a bachelor’s degree.  Some observers question whether POST actually has the authority to impose, by regulation, a higher educational standard than currently required by Government Code section 1031, subd. (e), which sets a minimum of a high school diploma or equivalent.

Further, as shown by the delay of the bias-screening regulations under AB 846, which are still not in effect four months after the statutory deadline, legislation requiring a regulatory agency to issue a regulation does not necessarily cause a regulation to be effectuated timely.

Thus, while it is clear that the Legislature desires higher education to be a prerequisite to employment as a police officer or deputy sheriff, whether or not this requirement is actually in effect by June 2025 remains to be seen.

We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

Since 1995, each President of the United States has designated the month of March as Women’s History Month through a proclamation. The month is set aside to “honor the generations of trailblazing women and girls who have built our nation, shaped our progress, and strengthened our character as people.”

Women’s History Month began in 1978 as a local weeklong celebration in Santa Rosa, California, to honor women’s contributions to history, culture and society. The movement then spread across the country as other communities initiated their own Women’s History celebrations on an annual basis. Each year, the National Women’s History Alliance designates a theme for Women’s History Month. This year’s theme is “Women Providing Healing, Promoting Hope” – which is meant to be both a tribute to the work of caregivers and frontline workers during this ongoing pandemic and a recognition of the thousands of ways that women of all cultures have provided both healing and hope throughout history.

Women’s involvement in the workforce has changed in notable ways over the past several decades. Despite the progress made, women still face many struggles in the workplace, including a lack of mentorship, the existing gender pay gap, and fewer opportunities for growth. On top of this, the pandemic has also disproportionately taken a toll on women. A 2021 study conducted by McKinsey & Company and LeanIn.org titled “Women in the Workplace 2021” found that women are now significantly more burned out at work, and increasingly more so than men. The report notes that one in three women say that they have considered downshifting their career or leaving the workforce this year. Given these statistics, employers should keep in mind the following tips for supporting women in the workforce.

Create Equal Opportunities For Raises, Promotions, and Leadership Development

According to the U.S. Bureau of Labor Statistics, women make up half of the U.S. population (50.8 percent) and make up approximately half of all employed workers (46.7 percent), yet on average earn less than their male counterparts. Although the gap in earnings between women and men is smaller than it was years ago, it is still significant. The   reported that in 2019, women who worked full-time had median weekly earnings of $821, which represented 82 percent of men’s median weekly earnings ($1,007). Additionally, women have been found to be underrepresented in leadership positions. For example, the McKinsey study notes that for every 100 men promoted to manager, only 86 women are promoted and as a result, men outnumber women significantly at the manager level, leaving far fewer women to promote to higher levels.

Employers should have practices in place to ensure that promotions and opportunities for pay increases are equitable amongst their workforce, and that the same rigor that is applied to women is also applied to men during the performance review process. It is also important that those in leadership positions recognize, invest in, and reward women who drive progress in their respective positions.

Provide Mentorship Opportunities

Finding mentorship opportunities can be difficult, especially for women when first entering the workforce. Employers can help support women succeed in the workplace by establishing formal mentorship programs that help to create growth opportunities and support the potential that women can contribute to the workforce. Providing mentorship opportunities will not only help women grow and gain confidence in their career, but will provide them with a confidant to whom they can turn with questions involving the workplace.

Offer Support and Flexibility Where Possible

One factor contributing to the lower numbers of highly educated and skilled women reaching the highest level of their professions is that many higher-level roles also require longer work hours and penalize taking time off. This in turn has a negative effect on women who often continue to bear most of the domestic and child-rearing responsibilities. Having flexible work policies that help women maintain employment and advance in their jobs, and having resources in place like on-site childcare, parental leave, and mental health services, can have a meaningful impact not only for women, but also more broadly for all working families who strive to have both a meaningful career as well as a work-life balance.

By acknowledging the issues that women face in the workplace and actively taking steps to address them, employers can create a workplace where women employees not only thrive and grow, but also are able to succeed.

 

After two years of the Covid-19 pandemic, things are looking optimistic in California.  Covid case numbers and hospitalizations are declining and mask requirements are loosening.  For many, myself included, this is great news and a much needed “return to normal.”  At the same time, however, the pandemic brought some changes to our lives that we may not be ready to give up, including remote work.  Many attorneys discovered they could easily work from home, and by eliminating a commute, they had time to exercise or spend time with their families, which has become invaluable.   For myself, once my children returned to school in-person, I was able efficiently to work from home and found the time avoiding commuting made me happier.  I had more time to devote to work, exercise, cooking, and my family.

During the pandemic, litigation adapted and went remote.  In my October 2020 blog post, Litigating During a Pandemic, I discussed how litigation was adapting to the pandemic and how depositions, mediations, and court appearances were operating on a remote basis.  Now that we are two years in to the pandemic and restrictions are easing, what has changed?  Is litigation still remote?  Are attorneys longing for in-person appearances?

For the most part, depositions, mediations, and court appearances have continued remotely.  First, whether court appearances are remote depends largely on the court and judge, and for mediations and depositions, they depend on opposing counsel.  For example, Los Angeles Superior Court has eliminated social distancing and restored in-person access without capacity limits in all Los Angeles County courthouses and courtrooms, but attorneys may appear remotely for all appearances.  In the United States District Court for the Central District of California, in-person appearances are required unless the judge permits otherwise.

Second, many attorneys, including myself, have found remote depositions and mediations to work just as successfully as in-person appearances, and have additional advantages.  Since the pandemic started, I have taken or defended about a dozen remote depositions.  While at first, everyone was concerned about witnesses cheating – by having notes out of view, texting with someone, or having someone else present – I have not had those concerns arise in any deposition.  Rather, we can ask the witness to pan the camera around the room and ask questions to confirm no notes or others are present.  In addition, with the zoom pinned on the witness, I can focus on cross-examining the witness – alone in my office – just as I would sitting across the witness in a conference room.  When defending a deposition, I felt just as comfortable objecting to questions by zoom and was able to check in with the witness by phone during breaks, just as I would if alone in a conference room.

Third, mediations have also continued to stay remote, largely for the same reasons as depositions.    Mediations require the appearance of the parties, attorneys, and insurance representatives or other financial decision makers.  Mediations typically last all day, sometimes well into the evening.  However, usually there is a lot of downtime as the mediator is speaking with other side.  When mediations are remote, you are free to go on mute and turn off your camera, and turn to other work or activities.  When the mediator is ready, they will notify the attorney and everyone will come back.  Remote mediations allow everyone to have more control over their time – whether that is spent doing other work, making phone calls, or walking the dog during the break.  Also, all-day in person mediations can be very hard on the parties who have other pressing job duties – by allowing them to appear remotely it is easier on the parties and less burdensome to schedule.  Also, it is a large cost-savings for parties and insurance carriers to avoid travel time.

I have participated in several mediations since the pandemic.  While I had a few remote mediations that settled that same day well before dinner time, I also had a couple of remote mediations that did not reach an agreement by the end of the day, which sometimes occurs even when mediations are in-person.  Those cases eventually settled within weeks or months after the mediation thanks to continued involvement of the mediator.  However, perhaps those cases could have resolved sooner in an in-person mediation, but it is hard to know.  While zoom mediations are certainly convenient, for some cases, having everyone in a room physically can increase the commitment and engagement and lead to a settlement sooner than later.  It is important to understand the nature of the case, the personalities of the attorneys and parties, and preferences of the mediator, to evaluate whether to have a remote or in-person mediation.  In searching for a mediator recently, the majority of mediators we contacted were only offering zoom mediations.

Finally, remote depositions and mediations offer other advantages. They are easier to schedule – no one has to travel for the appearance, which also saves costs.  Being in your own office also has advantages.  If you need additional documents, for example, they are easily accessible.  Also, it is important to be mindful that even if you are comfortable being with others in a small room (masked or unmasked), others may not be quite ready for that environment or be at high risk for Covid and desire additional precautions.

While being on zoom for 8 hours a day in a deposition or mediation can be tiring, the flexibility for witnesses in scheduling, cost savings, and equal effectiveness of the deposition will make zoom depositions and mediations commonplace even if pandemic restrictions recede.

This post appeared in April 2018.  It has been reviewed and is up to date.

Social media and the First Amendment is a fascinating and quickly-developing area of the law.  All types of business organizations have a social media presence, for example, a Twitter page or Facebook account, and often on their own websites invite the public to comment.  The same is true for news sources, from the most well-established like The New York Times and Los Angeles Times, to personal blogs and very small media outlets.  Often public comments provide content that is just as interesting and informative as what the owner of the site originally publishes.  Indeed, the owners may have a hand in this, because (unless their terms of service provide otherwise) they are free to pick and choose comments without concern about legal claims of censorship.  The First Amendment does not apply to private organizations, only to the government, and these private organizations are free to curate comments on their sites.

Many public agencies, including law enforcement, cities, counties, and educational institutions, themselves host social media sites for the benefit of the community, and encourage the public to post comments.  The First Amendment, however, does apply to these government agencies, and curating or censoring comments can, in some circumstances, lead to claims of First Amendment violations and expensive lawsuits.  For example, in 2012, the Honolulu Police Department faced a legal challenge to its decision to remove two local residents’ comments from its Department Facebook page.  The residents argued that the Police Department had created a public forum in its maintenance of the Facebook page, and that removal of their posts constituted unconstitutional censorship.  The Department’s guidelines described the page as “a forum open to the public,” yet the Department allegedly removed the residents’ posts simply because they were critical of the Department.  The case eventually settled with a payment by the Department of attorneys’ fees, and an agreement to revise its social media policies.

How can agencies honor their obligations under the First Amendment yet avoid having to serve inadvertently as the message board for certain types of content?  There are a number of ways.

First, and primarily, the agency can put into place a policy, carefully vetted by legal counsel, that sets forth what comments are authorized and what are not.  For example, the policy can specify that obscene, defamatory, and other similar types of comments are not permitted.  If posts are limited to certain topics or users, the policy can also specify that comments have to relate to the matter originally posted. In general, the policy however, must satisfy the “forum analysis” standards of free speech law, a primary requirement of which is that the policy operate in a “viewpoint-neutral” way.  This means that the agency in almost all circumstances cannot suppress one view on a topic yet allow comments favoring the opposing view.  In addition, the agency must be able to justify its restrictions on certain types of comments in a way that will satisfy forum analysis requirements.

Second, in theory, an agency can take an alternative approach that rests on the “government speech” doctrine.  In this approach, the agency would pick and choose only a few public comments to publish, and argue that its decision-making process constituted the expression of the agency itself.  This approach has support in U.S. Supreme Court cases from other contexts, such as from Pleasant Grove City v. Summum, in which the Court found that a city’s selection of which monuments to place in a public park constituted government speech, so that its decision not to select a particular monument was not censorship but the choice of the agency itself not to express itself in that way.  The approach has not been extensively tested by case law covering California, and will likely depend on the facts and circumstances of a particular case.  It is best to consult with counsel before implementing.

Third, although it does not help as a proactive approach, there is a particular litigation defense articulated by commentators to lawsuits against public agencies for censoring social media.  Some commentators have taken the position that speech on an agency-hosted platform is, in fact, not subject to the First Amendment, because the actual site itself belongs to a private entity.  In the case of a Facebook or Twitter page, the actual platform in cyberspace belongs to those organizations.  This theoretical defense, however, has so far not received significant support in case law.

Indeed, the most prominent case in this area, Trump v. Knight Institute from March 2020, provides a holding that  squarely favors constitutional free speech protections for the public.  In Knight, the Second Circuit Court of Appeals, which encompasses New York, held that Donald Trump, during his Presidency, violated the First Amendment by blocking some of his critics from access to his Twitter account.  The Court found that the public comment part of the account constituted a public forum in cyberspace, to which First Amendment free speech principles did apply.  The Court did not accept the argument that the decision to block content in that case constituted government speech.

We will keep readers informed of further developments in this important area of law.

On February 28, 2022, the California Department of Public Health (“CDPH”) updated its guidance concerning the use of face coverings to further relax those requirements.

While the updated CDPH guidance continues to require the use of face covering in certain high-risk settings,[1] the guidance removes those requirements in most other circumstances:

  • Effective March 1, 2022, the CDPH will no longer require that unvaccinated individuals wear a face covering in indoor public settings; and
  • After March 11, the CDPH will no longer require face covering in K-12 and childcare settings.

In order to ensure that the updated CDPH guidance also applies to employees in workplaces subject to the Cal/OSHA Emergency Temporary Standards (“ETS”), on February 28, 2022, Governor Newsom issued Executive Order N-5-22. That Executive Order immediately suspends the regulatory obligation under the Cal/OSHA ETS that otherwise would have required that employers ensure that unvaccinated employees wear face coverings when indoors and in vehicles.

In pertinent part, the Executive Order states:

  1. California Code of Regulations, title 8, section 3205(c)(6)(A)[2] is suspended.
  2. The ETS, adopted on December 16, 2021, which has a 90 day period specified in Government Code section 11346.1(h), is extended by 21 days.

As a result of the updated CDPH guidance and the Executive Order, employers no longer need to require that employees wear face coverings. If an employer elects to exercise its authority and allows employees to go without wearing face coverings, it should also update its COVID-19 Prevention Program (“CPP) and inform employees of the change or advise its employees that the relevant CPP provisions no longer apply.

For employers with represented workforces, LCW recommends the following steps to effectuate this change in policy:

  1. Provide notice to its employee organizations and an opportunity to bargain the change in the employer’s face covering requirements;
  2. Once the employer and its employee organizations agree on the revised face coverings requirements, either modify the relevant section of their COVID-19 Prevention Program (“CPP) or inform employees that that section is no longer operative, but that it has been supplanted by revised requirements, which should be provided to the employer’s employees.

These employers should consider which option is preferable given the Cal/OSHA ETS, with the extension provided under the Executive Order, is set to expire on April 6, 2022.

In the meantime, employers should continue to be mindful of any applicable local health orders that may prescribe the continued use of face coverings by some or all employees.[3]

LCW attorneys are closely monitoring developments on this subject and will continue to provide updates as necessary.

[1] These settings now include public transit, in emergency shelters, healthcare settings, correctional facilities, homeless shelters, long-term care settings, and senior care facilities.

[2] This provision required: “For all employees who are not fully vaccinated, employers shall provide face coverings and ensure they are worn when indoors or in vehicles.” (8 CCR 3205(c)(6)(A), emphasis added.)

[3] See 8 CCR 3205(c)(9)(B)

The Fair Employment and Housing Act (the FEHA) provides employees with legal protection from harassment, discrimination and retaliation. The Department of Fair Employment and Housing (DFEH) is the California agency that oversees and enforces the FEHA. As part of its oversight role, DFEH issues guidance to employers to assist in compliance with the FEHA requirements. This blog post summarizes the DFEH guidance and outlines key considerations for employers when creating a FEHA complaint anti-harassment, discrimination, and retaliation policy. To summarize, employers should create their own policy that encourages reporting and clearly communicate the policy to all employees.

Reduced Risk For Legal Action, Increased Chance Of Productivity

Under the FEHA, California employers have a duty to take reasonable steps to prevent and, when necessary, respond to and correct conduct that is discriminatory or harassing. In addition, although some inappropriate behavior will not violate the law because it is not severe or pervasive enough, such behavior is likely still offensive, contributes to an unproductive environment, and may lead to future issues. Prohibiting inappropriate behavior and clearly communicating the prohibition can both protect the employer from legal actions and create a more productive work environment.

What To Include When Creating Your Policy

When creating the policy, employers should avoid simply reciting the law. Although it may seem simple and the most protective, a mere recitation of the law creates risk for the employer. If the policy is simply a recitation of the legal standard, it could be found that the employer admitted that illegal conduct occurred when determining that its policy was violated.

To avoid these potential issues, employers should write their own policy and consider making it a “zero tolerance policy.” A zero tolerance policy prohibits any abusive conduct, harassment, discrimination, or retaliation, regardless of whether the behavior meets the legal threshold of being severe and pervasive. With a zero tolerance policy, employers can take action to investigate identified harassing behavior and correct it if necessary before it becomes a legal issue.

In addition, employers should follow the DFEH guidance when creating their policy. Specifically, the policy should meet the following requirements:

  1. Be in writing.
  2. List all current protected categories covered under the FEHA. Those categories include race and national origin, religious creed, physical disability, mental disability, medical condition, sex/gender, age (40 and over), sexual orientation, gender identity and expression, genetic information, veteran or military status, opposition to unlawful conduct, or any perception that a person is in one of the defined categories.
  3. Indicate that the law prohibits co-workers, third parties, supervisors, and managers from engaging in conduct prohibited under the FEHA.
  4. Set forth a complaint process that ensures complaints receive:
    • Employer 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; and
    • Timely closures.
  5. Provide a complaint process that does not require an employee to complain directly to the employee’s supervisor, by providing additional avenues to lodge complaints, such as:
    1. Direct communication with a designated representative, Human Resources manager, EEO officer, other supervisor, or ombudsperson;
    2. A complaint hotline; and/or
    3. A referral to the EEOC and DFEH.
  6. Instruct supervisors to report misconduct or complaints of misconduct to a designated representative or a Human Resources manager. This topic must be in the mandated sexual harassment training provided by the employer.
  7. Indicate that upon receipt of allegations of misconduct, the employer will conduct a fair, timely, and thorough investigation that provides all parties with due process and reaches reasonable conclusions based on the evidence collected.
  8. State that the employer will keep the complaint and investigation confidential to the extent possible, but not indicate that the investigation will be completely confidential.
  9. Indicate that appropriate remedial measures will be taken if, at the end of the investigation, misconduct is found.
  10. Make clear that employees will not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
  11. Include a link to, or the DFEH’s website address for, the sexual harassment online training courses created by the DFEH.

What To Include In The Policy’s Complaint Process

Once created, the policy is only as strong as its complaint process (described in items four and five above). If the policy includes the outlined items but does not facilitate and encourage reporting of inappropriate behavior, the employer remains at a heightened risk for legal action against it. An employer can increase the accessibility of the policy’s complaint process by incorporating the following considerations into it:

  1. The complaint process should encourage reporting by affording employees with multiple reporting outlets, not just the direct supervisor of the employee.
  2. Additionally, confidentiality should be maintained to the highest degree possible. The employer should make it clear that complete confidentiality is not guaranteed because investigations and due process may require disclosure of some information, but that disclosure will only be made as needed.
  3. The employer should respond when a complaint is received to notify the employee that the employer received the complaint and that any needed action will follow.

What To Include When Communicating The Policy To Employees

Once the employer has completed the policy with an accessible complaint process, translation may be necessary. If ten percent or more of the workforce speaks a language that is not English, the employer must translate the policy into all languages spoken by the employees.

When the necessary translations are complete and the policy is ready for communication to employees, the employer should take at least one of the following actions to ensure employees are aware of the policy:

  1. Print and provide a hardcopy of the policy to all employees with an acknowledgment form for the employee to sign and return to the employer.
  2. Send the policy via e-mail with an acknowledgment form for the employee to sign and return to the employer.
  3. Post the policy on the employer’s intranet with a system to track those employees that read and acknowledge the policy.
  4. Provide and discuss the policy with new employees.
  5. Any other alternative or additional method that ensures receipt and understanding of the policy.

Employers are also required to post the DFEH-created poster regarding transgender rights in a prominent and accessible location in the workplace.

Completing a comprehensive workplace anti-harassment, discrimination, and retaliation policy requires time and focus, but it is an important part of any agency’s Human Resources work.  Agencies should contact trusted legal counsel with any questions about the process of creating and communicating an anti-harassment, discrimination, and retaliation policy.