Update — Important Changes In Sexual Harassment And Other Laws In California

Outgoing Governor Jerry Brown signed dozens of bills into law on Sunday, September 30, 2018. Many of these new laws are in response to the #metoo movement and specifically target sexual harassment. This blog summarizes the key features of these laws and their effect on employers as well as others, such as VCs, who can now be held legally responsible under the sexual harassment laws for harassing non-employee persons who work for actual or potential portfolio companies.

These laws highlight the importance of regularly reviewing and revising training as well as anti-harassment, discrimination, and retaliation policies. Additionally, employers must keep these laws in mind in connection with their ability to negotiate effective settlement agreements.

Key takeaways

  • Professional services businesses (for example, investors) can now be liable for sexual harassment even absent an employer-employee relationship, and liability for harassment by nonemployees goes beyond sexual harassment.
  • Agreements with employees may not prevent them from discussing harassment claims or other unlawful conduct, with new limitations when settling harassment or discrimination claims.
  • California employers (now defined more expansively as 5 or more employees) must:
    o Provide one hour of training to nonsupervisory employees by the end of next year (and every two years thereafter); and
    o Provide two hours of training to supervisory employees by the end of next year (and every two years thereafter).
  • California employers must provide a broader range of accommodations.

Expansion of liability

These laws expand the parties who can be potentially liable for harassing acts:

SB 224 – Establishes broader liability for sexual harassment where there is a professional relationship

This law establishes liability for sexual harassment where the plaintiff proves that there is a business, service, or professional relationship between the defendant and the plaintiff. A plaintiff no longer needs to prove that he or she is not able to easily terminate the relationship. This law provides additional examples of professional relationships where liability for claims of sexual harassment may arise, including where the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party or where the defendant is an investor, elected official, lobbyist, director, producer, attorney, holder of a master’s degree in social work, real estate agent, or real estate appraiser.

SB 1300 – Unlawful employment practices: discrimination and harassment

This law provides that the “employer may be responsible for the acts of nonemployees with respect to other harassment activity” if the employer “knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” This expands prior law by including potential liability for any harassing act, not just sexual harassment.

Limits on confidentiality and other provisions

These laws affect an employer’s ability to limit its employees from disclosing claims of sexual harassment or assault in the workplace:

AB 3109 – Bans waiver of right to testify

This law renders void new contracts (or settlement agreements) that waive a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment. This bill only applies to contracts formed on or after January 1, 2019.

SB 820 – Limits confidential settlement agreements

This law is designed to ensure greater transparency with respect to claims of sexual harassment and assault. It renders void new settlement agreements that prevent the disclosure of factual information about civil or administrative complaints of (1) sexual assault, (2) sexual harassment, (3) workplace harassment or discrimination based on sex, and/or (4) retaliation against a person for reporting harassment or discrimination based on sex. This bill permits agreements that prevent the disclosure of (1) information that would identify the claimant, so long as the claimant has requested anonymity and the opposing party is not a government agency or public official and (2) information about the amount paid in settlement of a claim. This bill only applies to new settlement agreements formed on or after January 1, 2019.

SB 1300 – Unlawful employment practices: discrimination and harassment

This law prevents employers from requiring an employee to release a claim in exchange for a raise or bonus, or as a condition of employment or continued employment.

It also prohibits employers from requiring an employee to sign a non-disparagement agreement or other agreements that would “deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.”

These restrictions do not apply to “a negotiated settlement agreement to resolve an underlying claim . . . that has been filed by an employee in court, before an administrative agency, alternative dispute resolution forum, or through an employer’s internal complaint process,” so long as such agreement is voluntary and involves valuable consideration.

Additional employer requirements

These laws obligate employers to provide additional training and accommodations:

SB 1343 – Requires more employers to provide sexual harassment training

This law requires employers with five or more employees (existing law only applied to employers with fifty or more employees), including temporary or seasonable employees, to provide at least two hours of sexual harassment training to all supervisors and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and one hour every two years thereafter.

AB 1976 – Requires employers to provide lactation accommodations

Existing law requires employers to (1) provide a reasonable break to an employee who “desir[es] to express breast milk for the employee’s infant child” and (2) make “reasonable efforts” to provide the employee with the use of a private room or other location, other than a toilet stall, in close proximity to the employee’s work area.

This law clarifies the term “reasonable efforts.” Specifically, employers may provide a temporary lactation location, so long as: (1) the employer is unable to provide a permanent lactation location because of operational, financial, or space limitations; (2) the temporary lactation location is private and free from intrusion while in use by the employee; (3) the temporary lactation location is used only for lactation purposes while in use by the employee; (4) the temporary lactation location otherwise meets the requirements of state law concerning lactation accommodation. Agricultural employers are in compliance if they provide the employee with access to “a private, enclosed, and shaded space, including, but not limited to, an air-conditioned cab of a truck or tractor.”

AB 2079 – Requires employers to provide sexual violence and harassment prevention training to janitorial workers

This law bolsters existing sexual harassment and violence prevention training and prevention measures to empower janitors to prevent rape during night shifts. Specifically, all employers with at least one employee who provides janitorial services must complete detailed sexual harassment violence prevention requirements and provide an attestation to the Labor Commissioner. Upon employee request, the employer must provide an employee with copies of all training materials used during a training he or she attended.

The law would also prohibit the Labor Commissioner from approving a janitorial service employer’s request for registration or for renewal if the employer has not fully satisfied a final judgment to a current or former employee for a violation of the FEHA.

AB 3082 – Requires In-Home Supportive Services to provide sexual harassment training

This law requires the In-Home Supportive Services program to develop or otherwise identify standard educational material about sexual harassment and the prevention thereof, to make such material available to providers and recipients, and to provide a proposed method for uniform data collection to identify the prevalence of sexual harassment in the program.

AB 2338 – Requires talent agencies to provide education and training on sexual harassment

This law requires a talent agency to provide its artists access to educational materials on (1) sexual harassment prevention, retaliation, and reporting resources and (2) nutrition and eating disorders.

Further, the law requires that, before an employer can obtain a permit to employ a minor in the employment industry, the minor and the minor’s parent or legal guardian receive and complete training in sexual harassment prevention, retaliation, and reporting resources. The bill would further require a talent agency to request and retain a copy of the minor’s entertainment work permit prior to representing or sending a minor artist on an audition, meeting, or interview for engagement of the minor’s services.

We have extensive litigation and counseling experience regarding these issues. If you would like to discuss any of these issues, please contact us.