Preparing for the New California Employment Laws Brought on by the #MeToo Movement

November 30, 2018 Published Article

Last year was the year of the #MeToo and Time’s Up movements. This year, California responded by enacting ten new laws to combat harassment and discrimination in the workplace. Here is a quick overview of what companies need to know as they prepare for 2019. 

You Can’t Hide Information About Harassment and Discrimination in Settlement Agreements

Effective January 1, 2019, SB 820 prohibits settlement agreements from including provisions that prevent the disclosure of factual information related to civil or administrative complaints of sexual assault, sexual harassment, and workplace harassment or discrimination. Although SB 820 allows settlement agreements to shield the amount paid, the identity of the claimant and all facts that could lead to the discovery of his or her identity, Internal Revenue Code 162(q) prohibits employers from deducting (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, and
(2) attorneys’ fees related to any such confidential settlement or payment.

You Can’t Waive the Right to Testify in Settlement Agreements Either 

Provisions in settlement agreements entered into on or after January 1, 2019, that waive 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; or the other party’s agents or employees, are void and unenforceable under AB 3109.

Unlawful Employment Practices

SB 1300 is the most comprehensive and exhaustive sexual harassment law passed in 2018. It prohibits employers from requiring that employees sign a release of Fair Employment and Housing Act (“FEHA”) claims, or a non-disparagement agreement regarding unlawful acts in the workplace, in exchange for a raise or bonus, or as a condition of employment or continued employment. SB 1300 also prohibits employers who successfully defend FEHA actions from obtaining attorneys’ fees and costs unless the action was “frivolous, unreasonable, or totally without foundation” when brought or the plaintiff continued to litigate after it clearly became so. SB 1300 also expands employer liability for misconduct by nonemployees to include all types of harassment (not just sexual harassment), and encourages employers to provide bystander intervention training. As for plaintiffs, they no longer need to prove that their “tangible productivity” declined to successfully prosecute harassment claims.

Get Ready for Some More Training Requirements.

  • Non-supervisory Employees (SB 1343). By January 1, 2020, all employers with five or more employees must provide at least one hour of sexual harassment prevention training to all non-supervisory employees and repeat such training every two years thereafter. Employers with temporary or seasonal employees (who work less than six months) must train their employees within 30 days of hire or within the first 100 hours of work, whichever occurs first. 
  • Talent Agencies (AB 2338). Adult artists must receive educational materials on sexual harassment prevention, retaliation, and nutrition and eating disorders, with 90 days of engagement. A minor cannot obtain an entertainment work permit until his or her parent or legal guardian receives training in sexual harassment prevention, retaliation, and reporting.
  • Human Trafficking (SB 970). Hotels and motels must train each employee likely to interact or come into contact with victims of human trafficking for at least 20 minutes before January 1, 2020. New hires must receive such training within six months of hire. After January 1, 2020, hotel and motel employers must provide training on human trafficking awareness every two years.

Does Your Company Have Enough Women on Its Board of Directors? 

SB 826 requires all publicly held domestic or foreign corporations with their principal executive offices in California to have at least one woman on their boards of directors by December 31, 2019. By the end of 2021, the minimum number of women on such boards increases to two female directors if the board has at least five directors, and three female directors if the board has six or more directors. Corporations that fail to file timely board member information with the California Secretary of State should be prepared to pay heavy fines. The penalty for the first violation is $100,000, and the penalty for each subsequent violation rises to $300,000. 

What About Your Company’s Lactation Location?

AB 1976 requires employers to make reasonable efforts to provide employees with use of a location other than a bathroom, in close proximity to the employee’s work area, for employees to express milk in private. Employers who create temporary lactation locations are in compliance as long as the employer is (1) unable to provide a permanent lactation location, (2) the location is free from intrusion, (3) the location is used only for lactation purposes while the employee expresses milk, and (4) the location meets all other requirements of state law concerning lactation.

Sexual Harasser Reference Checks

AB 2770 offers limited protection to employers from defamation lawsuits arising from reference checks, allowing employers to answer, without malice, whether their decision not to rehire an employee is based upon the employer’s determination that the former employee engaged in sexual harassment. Despite this protection, employers should continue to exercise caution when responding to reference checks, as employees can attempt to get around this protection by alleging malice.

Cleaning Up Sexual Misconduct in Entertainment and Politics

Civil Code section 51.9 imposes liability for sexual harassment in business, service or other professional contexts and authorizes the Department of Fair Employment and Housing to investigate such claims. SB 224 modifies Civil Code section 51.9 and allows a plaintiff to prove a cause of action for sexual harassment against a defendant who holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship, and adds investors, elected officials, lobbyists, directors, and producers to the list of potential defendants.

Conclusion

Employers should be aware that the spotlight is on sexual harassment. For that reason, employers should review their sexual harassment policies and train their personnel accordingly.