California Employers Prepare: New Sexual Harassment Laws Set to Start January 1, 2019
The #MeToo movement has sparked new legislation aimed at tackling the problem of sexual harassment, especially in the workplace. California Governor Jerry Brown has signed several of these bills into law, set to take effect on January 1, 2019. Employers should review their policies in preparation for the changes.
Laws to encourage reporting of sexual harassment related claims:
- Assembly Bill 2770 – Provides employers with protection from potential defamation suits resulting from communications with prospective employers regarding sexual harassment complaints against a former employee. Subject to limited exceptions, a qualified privilege now exists with respect to an employer’s communications to a prospective employee regarding whether the employer would re-hire an employee who is alleged to have engaged in sexual harassment, so long as those communications are made without malice.
- Senate Bill 820 – Prohibits confidentiality clauses in settlement agreements preventing disclosure of information relating to claims of sexual harassment, sexual assault, and sex discrimination. Additionally, courts will no longer be able to restrict the disclosure of such facts in relevant civil proceedings.
- Assembly Bill 3109 – Makes unlawful any settlement or contract term entered into after January 1, 2019 that requires a party to waive the right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment. The law applies where a party’s testimony is required or requested pursuant to a court order, subpoena, or written request from an administrative agency or the legislature.
- Assembly Bill 1619 – Extends the time a plaintiff has to file suit for sexual assault from three to 10 years. The statute of limitations is further extended if the alleged conduct occurred on or after the victim’s eighteenth birthday.
Laws that will increase California employers’ potential liability for harassment-related lawsuits:
- Senate Bill 1300 – The strongest and largest sexual harassment bill passed this year will amend California’s Fair Employment and Housing Act (FEHA). First, it will expand employers’ potential liability by adopting or rejecting specific judicial decisions regarding sexual harassment. Second, it will expand an employer’s potential liability under FEHA for acts of nonemployees to all harassment (removing the “sexual” limitation). Third, it will prohibit an employer from requiring an employee to sign a release, as a condition of employment, raise, or bonus (but not as part of a bona fide dispute) of either FEHA claims or rights or a document prohibiting disclosure of information about unlawful acts in the workplace. Fourth, it will prohibit a prevailing defendant from being awarded attorney’s fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so. Fifth, it will authorize (but not require) an employer to provide bystander intervention training to its employees.
- Senate Bill 224 – Includes additional examples of potential defendants who can be found liable for harassment under California Civil Code section 51.9. A defendant may be liable where he or she “holds himself out as being able to help the plaintiff establish a business, services, or professional relationship with the defendant or a third party.” The law now explicitly includes investors, elected officials, lobbyists, directors, and producers as potential defendants in a harassment suit. The Department of Fair Employment and Housing (DFEH) is now authorized to investigate such claims.
Laws to alter employer obligations in the workplace:
- Senate Bill 1343 – Extends California’s requirement that employers with 50 or more employees provide supervisory personnel with anti-harassment training to employers with five or more employees, including seasonal and temporary employees. Further, the law now requires employers to ensure that all non-supervisory employees complete at least one hour of sexual harassment training.
- Senate Bill 826 – Mandates that public companies based in the state have at least one female (people who self-identify as women, regardless of their designated sex at birth) on their boards of directors by the end of 2019. By the end of 2021, corporations with five or more directors will be required to include at least two female members. Corporations failing to comply with these requirements will face penalties ($100,000 fine for the first violation and a $300,000 fine for further violations).
The overarching theme of the new laws is to encourage reporting and disclosure of potential harassment claims and to impose additional requirements for employers to prevent sexual harassment or discrimination in the workplace.
Employers should review their policies to determine compliance ahead of the January 1, 2019 deadline. We also recommend that employers begin developing compliant harassment training for supervisory and non-supervisory employees. Our team can assist you in creating policies and training that are compliant with the new laws.
To learn more about how the model policies and sexual harassment training might affect your business, please contact:
- Peter J. Woo
- Stephen C. Mazzara
- Erica B. Row
- Or another member of our Employment and Labor Practice Group.