The #MeToo movement and numerous high profile workplace-relations lawsuits prompted new California employment laws that take effect on January 1, 2019. California employers and employees alike should take note of four notable sexual and workplace harassment laws detailed below. Don't hesitate to reach out to an experienced California employment lawyer should you have questions about these statutory changes and the impact they have on your policies and procedures.
Senate Bill 820 – Settlement Agreements Regarding Claims of Sexual Assault, Sexual Harassment, Gender Discrimination, and Related Retaliation
SB 820 prohibits non-disclosure provisions in settlement agreements related to civil or administrative complaints of sexual assault, sexual harassment, and workplace harassment or discrimination based on sex. The bill expressly authorizes provisions that (i) preclude the disclosure of the amount paid in settlement and (ii) protect the claimant's identity and any fact that could reveal the identity, so long as the claimant has requested anonymity and the opposing party is not a government agency or public official. SB 820 applies to settlement agreements entered into on or after January 1, 2019.
Senate Bill 1300 – Amendments to the Fair Employment and Housing Act (FEHA)
SB 1300 significantly expands liability under the Fair Employment and Housing Act, lowering the burden of proof to establish harassment and provides stricter guidance on what constitutes “severe or pervasive” conduct that rises to the level of unlawful harassment. SB 1300 provides the following tenets that take effect at the start of the new year:
- makes employers liable not only for claims of sexual harassment, but for any kind of unlawful harassment by non-employees where the employer knew or should have known of the harassment and failed to take appropriate corrective action;
- prohibits employers from requiring an employee to release a FEHA claim in exchange for a raise or bonus or as a condition of employment or continued employment;
- prohibits an employer from requiring an employee to sign a non-disparagement agreement or other document by which the employee would be restrained from disclosing information about unlawful acts in the workplace;
- provides guidance on bystander intervention training; and
- adds declarations of the Legislature's intent with regard to the application of the anti-harassment laws. Among other things, the Legislature has declared that a single incident may be sufficient to create a triable issue regarding the existence of a hostile work environment; that harassment cases are rarely appropriate for disposition on summary judgment; and that the legal standard for sexual harassment does not vary by type of workplace.
Senate Bill 1343 – Sexual Harassment Training
SB 1343 expands the requirements relating to sexual harassment training. Current law requires all employers with 50 or more employees to provide at least two hours of sexual harassment prevention training only to supervisors and managers every 2 years, or within 6 months of an employee becoming a supervisor or manager. SB 1343 expands the requirement to include employers with at least 5 employees. The amendment also requires employers to provide at least one hour of training to non-supervisory employees by January 1, 2020, and once every 2 years thereafter. The Department of Fair Employment and Housing (DFEH) is charged with creating training materials as an option for employers to use.
Senate Bill 224 – Expansion of Relationships Subject to Sexual Harassment Claims
The FEHA currently protects employees and applicants from harassment in the employment relationship. SB 224 expands that reach to individuals who may not be employers, but hold themselves “out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a 3rd party.” This would potentially include doctors, lawyers, investors, landlords, elected officials, lobbyists, directors, and producers.
California Employment Law
Three of these workplace harassment bills go into effective in 2019, and a fourth (SB 1343) requires training to be developed and implemented by 2020. Should you have questions about California's sexual and workplace harassment laws, don't hesitate to contact Kingsley & Kingsley to speak with one of our experienced labor lawyers.
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