Sexual Harassment Bill – AB 1867
On August 24, 2018 AB 1867 was passed by the California General Assembly and is awaiting signature by Governor Jerry Brown. If signed by Governor Brown, AB 1867 will add Government Code section 12950.5 to the Fair Employment and Housing Act (FEHA) and would require employers of 50 or more employees to maintain internal records of complaints alleging sexual harassment for five years after the date the complainant or any alleged harasser leaves the company—whichever date is later.
Existing law requires California employers to maintain anti-harassment policies that inform employees of the complaint process available to them. The new law would permit the state Department of Labor to seek an order compelling any employer to comply with the record-keeping requirement and mandate that records of the complaints alleging sexual harassment must be maintained for the employment-plus-five-year period. AB 1867 defines an “employee complaint” as one filed through the employer's “internal complaint process.”
Unenforceable Contracts That Waive a Right to Testify – AB 3109
Also awaiting Governor Brown's review and signature is AB 3109, which would void any contractual provision that waives a party's right to testify about criminal conduct or sexual harassment by the other contracting. As it relates to workplace harassment and similar situations, this bill declares that any settlement provision that would prevent a person from testifying about criminal conduct or sexual harassment in a judicial, administrative, or legislative proceeding is void and unenforceable, so long as the person was required or requested to appear at the proceeding. This provision requires that the person appears and testifies pursuant to a subpoena or court order in the case of a judicial proceeding, or in response to a written request in the case of an administrative or legislative hearing. In other words, a person who signed a settlement agreement to refrain from speaking about certain matters would not be free to breach that confidentiality by voluntarily showing up and speaking at a public hearing. While this bill will not outlaw non-disclosure agreements, it will limit their scope so that victims and witnesses could never be prevented from testifying in legal or legislative proceedings when asked to do so.
Prohibition of Mandatory Arbitration Agreements – AB 3080
The Legislature passed AB 3080 on August 27, 2018. This bill would outlaw mandatory arbitration agreements between businesses and employees or independent contractors, and thus ensure that harassment complaints get aired in public lawsuits instead of private arbitrations. Per the Senate's analysis of AB 3080, This bill addresses two legal tactics, commonly used in relation to employment contracts, that can be and have been exploited to silence victims and witnesses of workplace sexual harassment: (1) the inclusion of non-disparagement clauses; and (2) forcing workers to sign mandatory arbitration agreements. As to the first tactic, this bill tries to limit abuse of non-disparagement agreements by making it unlawful for employers to prohibit workers from disclosing an instance of sexual harassment, opposing an unlawful practice, or participating in any investigation relating to harassment or discrimination. As to the second tactic, since current federal case law strongly favors enforcement of mandatory arbitration agreements, even when used to keep allegations of sexual harassment from becoming public, California cannot outlaw or discriminate against such agreements. Instead, this bill ensures that California workers who sign agreements to waive their rights to any particular forum or procedure for dispute resolution do so voluntarily and that those who elect not to sign such agreements are not subjected to retaliation as a result.
California Employment Law
Leading California employment lawyers at Kingsley & Kingsley will continue to monitor these bills until Governor Brown takes action. In the meantime, if you have any questions about California's wage and hour laws, contact Kingsley & Kingsley to speak with one of our experienced labor lawyers.
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