3 New Sexual Harassment Bills Signed in California, 2 Vetoed

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Washington Employment Law Update – October 2018
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Reminder: Medicare Part D Notices are Due Before October 15
October 3, 2018
Washington Employment Law Update – October 2018
October 8, 2018

California legislators sent a total of 1,217 bills to California Governor Jerry Brown for the 2017-2018 regular legislative session. He signed 1,016, vetoed 201, and 183 of them he reviewed the weekend just before his September 30, 2018, signature deadline. (In case you are wondering, that’s a lot of bills for one year; more than any California governor has seen since 2004.) While these bills touched on a variety of issues, many will have impacts on employers.

One issue that multiple bills covered is sexual harassment. Governor Brown signed three pieces of legislation aimed at strengthening protections against sexual harassment in the workplace by restricting nondisclosure agreements, expanding legal recourse, and increasing training requirements.

Alternatively, he vetoed two bills – but for good reason. He vetoed AB 3080 prohibiting mandatory arbitration agreements, as it conflicted with SCOTUS’s May 2018 decision in Epic Systems Corp. v. Lewis. He also vetoed AB 1870, which would have extended the statute of limitations (SOL) for claims brought under the California Fair Employment and Housing Act (FEHA). According to the Governor’s message attached to his veto, “ . . . the current [SOL] of one year encourages prompt resolution and ensures that unwelcome behavior is promptly reported and halted.”

California Senate Bill 1300: Employment Practices, Discrimination, and Harassment

Effective January 1, 2019, SB 1300 changes the way sexual harassment claims are litigated and more. It:

  • Specifies that an employer may be responsible for the acts of nonemployees.
  • Prohibits employers from, in exchange for a raise or bonus, or as a condition of employment:
    • Requiring a release of a claim or right under the FEHA.
    • Requiring an employee to sign a nondisparagement agreement or other document that denies the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
  • Makes employers responsible for any type of harassment prohibited under FEHA of employees, applicants, unpaid interns or volunteers, or persons providing services under a contract in the workplace. Not just sexual harassment.
  • Authorizes an employer to provide bystander intervention training to its employees.
  • Prohibits prevailing defendant-employers from being awarded 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.

California Senate Bill 820: Settlement Agreements and Confidentiality

This law, which also takes effect January 1, 2019, bans non-disclosure agreements in civil or administrative actions involving claims of sexual assault, sexual harassment, workplace harassment, or discrimination based on sex. It also allows a claimant to shield their identity. While it does not require employers to disclose the amount paid in settlements, the underlying facts of the case cannot be withheld.

California Senate Bill 1343: Sexual Harassment Training

This law expands California’s already-stringent sexual harassment training requirements. While it does not change the content requirements, beginning January 1, 2020, the state will require all employers with five or more employees (down from the current 50), including temporary or seasonal employees, to provide at least one hour of classroom or other effective interactive training and education about sexual harassment to all nonsupervisory employees in California within six months of hire.

Under the new law, an employer may provide this training in conjunction with other training. The training may be given individually or as part of a group presentation, and may be completed in shorter segments, as long as the hourly total requirement is met. However, an employer who has provided this training and education to an employee after January 1, 2019, is not required to provide training and education by the January 1, 2020, deadline.

Get It All

For more information on the California sexual harassment bills, including those vetoed by Governor Brown, read this analysis by ThinkHR’s legal partners at Constangy, Brooks, Smith & Prophete, LLP.

For information on other California bills relevant to employers, keep an eye on ThinkHR’s Law Alerts. Law Alerts are posted daily to Comply and aggregated on this blog every other Monday for each state in which there is news. Federal legislation and regulations are also covered in Law Alerts.

About Samantha Yurman, JD

Samantha Yurman is one of ThinkHR’s legal editors. She is a licensed attorney in California and Florida with over 16 years of experience researching and analyzing human resources legislation and law. Samantha uses her expertise to translate highly technical legal topics into usable information for our clients.

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