Preventing and Correcting Wrongful Conduct in California

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Employers in California are required to take reasonable steps to prevent and correct wrongful conduct in the workplace, speakers said during a June 21 concurrent session at the Society for Human Resource Management 2016 Annual Conference & Exposition.

New Fair Employment and Housing Act (FEHA) regulations took effect on April 1 that provide guidance for California employers about their affirmative duty to prevent and correct discriminatory, harassing and retaliatory behavior in the workplace.

Patti Perez, a member of the California Fair Employment and Housing Council and an attorney with Ogletree Deakins in San Diego, spoke to conference attendees about the council's role in shaping the new regulations.

In many states, employers can strengthen their defense to a lawsuit by showing that they took reasonable steps to prevent or correct wrongful behavior, Perez explained. In California, however, an employee can bring a separate legal claim against an employer for failing to take such measures.

The new regulations help employers know what steps they need to take. "We are not really creating new law but clarifying what is already out there," Perez said.

The goal is to create "a workplace environment of dignity and respect" that aims to prevent these problems from occurring, said Joseph Beachboard, a managing director of Ogletree Deakins in Los Angeles and Torrance, Calif.

Create and Distribute Policy


Employers should create a policy that includes a list of protected categories in the state, a statement that unlawful conduct isn't permissible, and details on how managers and supervisors can report misconduct.

The policy should also provide employees with a flexible complaint mechanism and multiple avenues for filing complaints.

"A policy that says 'you must notify your immediate supervisor' isn't going to fly," Perez said. Employers must provide several ways for employees to make a complaint. Examples include designating a representative, offering a complaint hotline, and providing contact information for the Department of Fair Employment and Housing.

The policy should be distributed to employees with an acknowledgment form, and it should be translated into languages spoken by 10 percent or more of the workforce.

Conduct Fair Investigations


FEHA regulations require complaint investigations to be prompt, confidential and documented, Perez said.

It is a best practice to respond within 48 hours of receiving the complaint. The issue doesn't have to be resolved in that time, but the complainant should be informed that an investigation has been initiated, she said.

Employees should know there is no guarantee an investigation will be completely confidential, but it will be confidential to the extent possible.

Additionally, employers need to be fair to all sides in the investigation and should take corrective measures if they identify an issue.

"Oftentimes, employers think they only have two options: either do nothing at all or fire the employee," Perez said. However, employers can take less severe remedial measures that are appropriate for the behavior.

Even if the conduct wasn't unlawful, employers still need to take measures to correct misconduct so that it doesn't escalate to unlawful behavior later.

Train Supervisors on Retaliation​


Employers in California with 50 or more employees must provide sexual harassment training to supervisors every two years. The new regulations added some language about this training, including record-keeping requirements.

Beachboard noted that retaliation has become the No. 1 claim brought by employees. "In training, we talk a lot about harassment and discrimination but don't spend much time talking about retaliation," he said. "I make sure I dedicate at least five to 10 minutes of the two-hour required training to talk about how not to be accused of retaliation."

The best way to protect the company from a retaliation claim is to document conversations and performance issues from the start, Perez said. If it was documented prior to the employee's complaint or other protected activity, it's not going to look like retaliation later.

Beachboard said his clients that take "a holistic approach" to training and best practices face fewer claims than those who simply do the minimum to comply with the law. "And if they do have a claim, they are better equipped to handle it," he noted.

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