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 sexual 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 any 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 claimant  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 pre -litigation claims.

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 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.

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.

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

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