December 17, 2018
The California Legislature Breathes New Life Into the #MeToo Movement by Passing a Package of Bills Addressing this Issue
It has been over a year since The New York Times published its exposé on sex harassment in Hollywood. Since then, the #MeToo movement has affected employers everywhere. Governor Jerry Brown signed a package of bills that specifically address concerns raised by the #MeToo movement. This issue of Compliance Matters summarizes these new laws. Unless noted otherwise, the laws are effective January 1, 2019.
Harassment Discrimination (SB 1300)
In response to the #MeToo movement, SB 1300 greatly expands on existing protections pertaining to workplace harassment and creates new obligations for employers.
Harassment by Nonemployees
Under existing law, an employer may be responsible for
harassment of their employees committed by third parties who come in contact with them only if the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
The new law expands the reach of the State's non-discrimination laws considerably by specifying that employers may now be liable for such third party harassment not only with regard to sexual harassment, but with regard to
other type of unlawful harassment
that is prohibited by State law (examples: harassment on the basis of the employee's race, disability, national origin, gender identity, or age)
Settlement Agreements / Release of Claims
Separately, SB 1300 prohibits employers from obtaining a release or waiver agreement covering illegal discrimination or harassment under State law as a condition of initial employment or continued employment, or in exchange for a raise or bonus.
The new law also prohibits employers from requiring an employee to sign a non-disparagement agreement or other document that prevents the employee from freely discussing with co-workers or others any alleged unlawful acts, including sexual harassment or any other unlawful or "potentially unlawful" conduct, in the workplace.
Settlement Agreements: AB 820 Targets the "Secrecy" Culture of Sexual Harassment
The concept of the non-disclosure agreement was heavily criticized in the wake of the #MeToo movement. Many blamed the use of non-disclosure agreements for the culture of secrecy that allowed abusers to continue to abuse other victims while effectively evading public scrutiny and punishment.
AB 820 seeks to change all that in sexual harassment cases. The new law prohibits parties from including a non-disclosure (confidentiality) provision in a settlement agreement involving claims of sexual assault, sexual harassment, workplace harassment or discrimination based on sex. However, a provision that shields the identity of the
and all facts that could lead to the discovery of his or her identity
, including pleadings filed in court, may be included within a settlement agreement
if done so at the request of the claimant
. This new law only applies to settlement of a claim filed in court or with a government entity. As such, it does not apply to the private resolution of
Required Harassment Training for All Employees (SB 1343)
Smaller employers will now have to do sexual harassment and abusive workplace training. Existing law requires employers with
50 or more employees
to provide at least 2 hours of such training to all supervisors within 6 months or hire or promotion to the position and thereafter every two years. The new law expands an employer's training requirement in two significant ways.
The Senate Bill states that the Department of Fair Employment and Housing is developing a series of on-line training programs for employers that will meet these requirements.
- The supervisory training requirement will now apply to every employer with just 5 or more employees (including temporary or seasonal employees); and
- Employers with 5 or more employees also must provide at least 1 hour of anti-harassment training to all (non-supervisory) employees within the first six months of employment. This training must be completed by January 1, 2020, and must be done every two years.
Required "Human Trafficking" Training for Hotel Employers (AB 970)
Beginning on January 1, 2020, all hotels and motels (excluding a bed and breakfast inn)
must provide at least 20 minutes of classroom training or other effective training regarding human trafficking awareness to each employee who is likely to interact with victims of human trafficking, within 6 months of employment in that role and to each new employee. Those who are likely to interact with victims of human trafficking include employees who have interactions with the public, including an employee who works in a reception area (front desk), performs housekeeping duties, helps customers in moving their possessions (bell department), or drives customers.
Expansion of Those Covered Under Harassment Laws (AB 224)
The state's job bias laws are in the Fair Employment and Housing Act (FEHA). Current law only applies to the employer/employee relationship. This new law expands the relationships subject to sexual harassment liability under the FEHA, including, but not limited to
Contract Provision (AB 3109)
- Elected officials,
- Real estate agents,
- Real estate appraisers,
- Trust officers,
- Financial planners,
- Loan officers,
- Collection service,
- Building contractors, or escrow loan officers, and
- Others who hold themselves out as being able to help the alleged victim establish a business, service or professional relationship with the alleged harasser or other third party.
This new law, parties cannot have a contract provision that waives a party's right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment on the part of the other party to the contract or settlement agreement, or on the part of the agents or employees of the other party, when the party has been required or requested to attend the proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the legislature.
New Privilege Created (AB 2770)
Under this new law explains that certain communications regarding sex harassment claims are "privileged", which means that the person making the statement may not be sued for defamation of character if the statement is made in good faith and without malice. In doing so, the new law makes the following communications privileged: (i) a complaint of sexual harassment by an employee, without malice, to an employer based upon credible evidence; and (ii) communications between the employer and "interested persons" (like other managers within the organization) without malice, regarding a complaint of sexual harassment.
Additionally, the new law also protects employers who wish to tell a prospective employer about the sexual harassment of a former employee by authorizing a current or former employer, or the employer's agent, to answer, without malice, whether the employer would rehire a former employee and whether the decision to not rehire is based upon the employer's determination that the former employee engaged in sexual harassment.
Given that most of these laws require compliance by January 1
, California employers should begin preparing accordingly. As always, we are available to answer any questions about the new sexual harassment legislation discussed above. We continue to offer legally compliant harassment awareness training for employers. If you have any questions or would like to inquire about sexual harassment training, please call your firm contact at (818) 508-3700, or visit us online at www.brgslaw.com.
Katherine A. Hren
Richard S. Rosenberg
Ballard Rosenberg Golper & Savitt, LLP