For Harassment Prevention, Posters Are Not Enough

Many small businesses do not have employee handbooks or other written policy statements distributed to each employee. Employee handbooks may seem overly formal, just more paperwork and an unnecessary expense. Owners may hang the required posters in a break room and feel that they have done enough to communicate an intent to prevent workplace harassment, discrimination and retaliation.

There are good reasons even for a micro company to have at least a basic employee handbook, tailored to that company’s size and culture. For example, a properly prepared handbook provides a basic “rule book” that helps ownership comply with applicable laws without the expense of a call to an outside human resources consultant or legal counsel each time an issue arises. It may also be an important part of a defense to an employment-related claim or lawsuit.

Recent amendments to regulations that implement California’s employment and housing anti-discrimination laws, effective April 1, 2016, have added another reason for an employee handbook. An updated poster alone is not enough.

Mandated Written Harassment, Discrimination, And Retaliation Prevention Policy

California law has long forbidden workplace harassment and discrimination and required an employer to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct. The amended regulations now require all employers to have a harassment, discrimination and retaliation prevention policy that (a) is in writing; (b) lists all current protected categories protected under the Fair Employment & Housing Act; (c) prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act; (d) creates an effective complaint procedure; (e) provides a means to make a complaint to someone other than an immediate superior; (f) states that confidentiality will be maintained to the extent possible; (g) makes clear that there will be no retaliation as a result of lodging a complaint or participating in an investigation; and other requirements.

If 10 per cent or  more of the employees speak a language other than English as their spoken language shall translate the policy into every language that is spoken by at least 10 percent of the workforce.

The amendments mandate that this prevention policy be disseminated that ensures employees receive and understand the policies. The nonexclusive list of possible means of dissemination strongly suggest that a poster alone is not sufficient. Authorized methods of dissemination are:

(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 e-mail 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.

Takeaways

Employers may comply with these requirements by inclusion of this policy in an employee handbook. A handbook should also include, at a minimum, policies forbidding workplace harassment and discrimination, a reiteration that employment is “at-will,” basic wage & hour information, the company’s paid sick leave policy (compliant with the California Paid Sick Leave Law and, if applicable, local ordinances such as San Francisco’s Paid Sick Leave Ordinance), attendance requirements and standards of employee conduct. By inclusion of the prevention policy in a properly prepared employee handbook, management can minimize the number of separate documents it must give employees and simultaneously communicate other essential information.

It has always been a best practice to obtain a signed acknowledgement of receipt of an employee handbook from every employee. If the prevention policy is included in a handbook, that best practice is now mandatory.

Whether a business does or does not currently have an employee handbook, we recommend that California employers re-examine policies and procedures to ensure compliance with all current laws and regulations (not merely this amendment). Policies and procedures should be updated to meet current requirements. The updated handbook (or separate policy) should be distributed to every employee and a signed acknowledgement of receipt obtained. The acknowledgment of receipt should be placed in the individual employee’s personnel file.

Contact James Parton at (415) 755-4203 or jparton@partonsell.com if you have any questions about this or other changes in California law.

Many small businesses do not have employee handbooks or other written policy statements distributed to each employee. Employee handbooks may seem overly formal, just more paperwork and an unnecessary expense. Owners may hang the required posters in a break room and feel that they have done enough to communicate an intent to prevent workplace harassment, […]