It’s no surprise that the 2018 Legislative session concluded with a variety of measures addressing the hottest topic of the year: sexual harassment in the workplace. California has always been on the forefront of harassment prevention training, but employers will now be required to update many of their existing employment policies to conform to the various changes in the law approved by Governor Jerry Brown. Below are summaries of the new laws and discussion of the practical effect of these changes for employers.
Anti-Harassment Training
Under AB 1825, companies with 50 or more employees were required to provide anti-harassment training for supervisory staff. SB 1343 reduces the threshold for California employers to provide harassment prevention training to only 5. The measure also expands the training to require employers to provide at least 1 hour of sexual harassment training to all non-supervisory employees within 6 months of their assumption of a position.
Importantly, the measure requires the DFEH to develop and make available on its website online training courses on the prevention of sexual harassment in the workplace. The department is required to develop both 1-hour and a 2-hour training videos for employers to utilize. The effective date of the new law has contradictory language as written, but its requirements will be mandated either by or after January 1, 2020.
You Should: Within 6 months of their assumption of a position, prepare to train all of your supervisory employees on sexual harassment prevention for at least 2 hours, and all nonsupervisory employees for at least 1 hour. Ensure that these employees are then re-trained at least every 2 years. Consistent with existing law, employers should also distribute to all employees a sexual harassment fact sheet developed by either you or DFEH and post the requisite DFEH posters regarding discrimination and transgender rights in a prominent and accessible location in the workplace.
Anti-Discrimination & Anti-Harassment Measures
Corporations with their principal offices in California will no longer be permitted to have an all-male board of directors. Additionally, a multitude of new restrictions invalidates provisions of contracts, or in some cases even entire agreements, when parties contract to prevent the disclosure of certain unlawful employment practices.
Board of Directors: Female Members
Summary: SB 826 requires publicly held corporations with principal executive offices in California to include women directors on their boards. The law authorizes the Secretary of State to fine corporations for violating the bill’s provisions and sets the fines at $100,000 for a first violation, $300,000 for subsequent violations, and $100,000 for failure to timely file board member information with the Secretary of State.
You Should: No later than the close of the 2019 calendar year, have a minimum of one female director on your board. A corporation may increase its number of board directors in order to comply. No later than the close of calendar year 2021, if your board has:
- Six or more directors, include a minimum of three female directors.
- Five directors, include a minimum of two female directors.
- Four or fewer directors, have a minimum of one female director.
Settlement Agreements: Public Disclosure of Perpetrators of Sexual Assault or Harassment
Summary: Effective as of January 1, 2019, SB 820 expands existing law that previously prohibited a settlement agreement from preventing the disclosure of factual information related to certain sexual offenses in civil actions, to now include claims brought in an administrative action. Additionally, the scope of non-disclosable sexual offenses was expanded to include an act of sexual assault, an act of sexual harassment, an act of workplace harassment or discrimination based on sex, a failure to prevent an act of workplace harassment or discrimination based on sex, and retaliation against a person for reporting harassment or discrimination based on sex.
Moreover, in a civil proceeding a court is prohibited from restricting the disclosure of information if it conflicts with the disclosure requirements above. While the victim can choose to keep his or her name private in a settlement agreement, the perpetrator’s identity cannot be confidential. The amount paid in settlement of a claim may still be kept confidential under the new law.
Author Sen. Connie Leyva said, “For decades, secret settlements have been used by wealthy and well-connected perpetrators to offend repeatedly with no public accountability.”
You Should: By January 1, 2019, remove any provisions in a settlement agreement brought in a civil or administrative forum that prevent the disclosure of factual information regarding claims of sexual assault, sexual harassment, and harassment or discrimination or retaliation based on sex.
Warn employees of the risk of engaging in conduct that can potentially give rise to claims of sexual harassment, sexual assault, sexual discrimination, or retaliation based on sex. Such claims in a civil or administrative forum will mandate that the employee’s name be brought into the public light. Employees should realize that they may never get the chance to vindicate themselves in front of a fact-finder because employers often decide to avoid the risk of windfall sexual harassment or sex discrimination verdicts through settlement.
The “Me Too” Sexual Omnibus Bill: Restrictions on Non-Disparagement Clauses and Waivers of FEHA Claims
Summary: Effective January 1, 2019, SB 1300 limits an employer’s ability to utilize non-disparagement clauses and certain waivers for claims asserted under the California Fair Employment and Housing Act (FEHA). With certain exceptions, the new law will prohibit an employer, in exchange for a raise or bonus or as a condition of employment or continued employment, to require the release of a claim or right under FEHA. Additionally, any requirement for an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace will be unlawful unless it is part of a negotiated settlement agreement to resolve an underlying claim filed by an employee in court, before an administrative agency, in an alternative dispute resolution forum, or through an employer’s internal complaint process.
This bill also broadens potential employer liability from “sexual harassment” acts by non-employees that the employer knew or should have known about to include “any harassment” by non-employees that employers knew or should have known about. SB 1300 also encourages (but does not require) employers to provide bystander intervention training.
Of major significance, this bill declares the legislature’s intent about the standard of review to be used for evaluating sexual harassment claims. The impact is that “a single incident of harassing conduct is sufficient to create a triable issue” and “harassment cases are rarely appropriate for disposition on summary judgment.”
You Should: After January 1, 2019, unless it is in a qualifying negotiated settlement agreement, never require waiver of any FEHA claim as a condition of a raise, bonus, employment, or continued employment. After January 1, 2019, never require an employee in any agreement or document to waive their right to disclose information about unlawful acts in the workplace, unless the waiver is in a qualifying negotiated settlement agreement. Consider providing bystander intervention training to employees.
Contracts & Settlement Agreements: Prohibition on Waiver of Right to Testify Regarding Criminal Conduct or Sexual Harassment
Summary: Effective January 1, 2019, AB 3109 makes a provision in a contract or settlement agreement void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment and the allegations are against the other party to the contract, their agents, or their employees. This law applies where “the [accused] party has been required or requested to attend [a] proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the legislature.”
You Should: After January 1, 2019, do not contract or settle with a party requiring them to waive their right to testify about criminal conduct or sexual harassment when an employer, an agent of the employer, or an employee of the employer is the one accused of the sexual harassment or criminal conduct, and the employer is requested to attend a proceeding by either the court, an administrative agency, or by the legislature.
