By MARY L. TOPLIFF, ESQ. Published on NOVEMBER 3, 2018
The #MeToo movement has had a profound societal impact, reaching a wide variety of industries and employers. In October 2017, more than 140 women who worked in and around the California Legislature published a letter detailing a culture of sexual harassment at the California Capitol. Public hearings ensued and set in motion a variety of new laws arising out of the 2017-2018 legislative session in California.
In addition to harassment-related laws, the Governor signed other bills clarifying the Fair Pay Act and lactation accommodation obligations, among others. The following article covers the most significant aspects of the new laws, all of which go into effect on January 1, 2019, unless otherwise indicated.
Expansion of California Harassment Laws
1. New Harassment Training Requirements
The Fair Employment and Housing Act (FEHA) has long required employers with 50 or more employees to provide harassment prevention training for managers every other year. SB 1343 expands this requirement to employers with 5 or more employees, meaning that all supervisory employees must receive two hours of training by January 1, 2020 and every two years thereafter. This bill further requires all nonsupervisory employees to receive at least one hour of harassment prevention training according to the same time frames. The Department of Fair Employment and Housing is to develop or obtain one-hour and two-hour online training courses, which it will post on its web site for employers to use.
SB 1300 states that employers may, but are not required to, provide bystander intervention training to include practical guidance on how to enable bystanders to recognize and take action on potentially problematic behaviors.
2. Expansion of Liability for Harassment
SB 1300 further expands employers’ responsibilities in providing a harassment-free workplace for their employees when a non-employee is the harasser. This could include an independent contractor, consultant, vendor, delivery person or your most important customer. The prior law made employers responsible for non-employees’ sexual harassment. This bill expands this responsibility to include all forms of prohibited harassment, for example, harassment based on race, national origin, sexual orientation, age, or disability (to name a few).
This bill will likely have significant implications in employment litigation through its provisions declaring that harassment cases are rarely appropriate for summary judgment disposition and that a single incident of harassing conduct is sufficient to create a triable issue of fact.
From a prevention perspective, the new law states that the legal standard for sexual harassment should not vary by type of workplace. It states that it is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past.
3. Employment References for Harassers
AB 2770 addresses challenges employers have faced when providing employment references or answering questions as to whether they would rehire a former employee when that employee engaged in harassment (and likely was terminated as a result). Employers have been cautious in providing such information due to the risk of a defamation claim from the former employee. This new law allows employers to inform a former employee’s prospective employer about whether a decision to terminate or not rehire that individual was based upon the employer’s determination that the former employee engaged in sexual harassment. Employers would nonetheless face potential liability if their statements were made with malice.
4. Limitations on Confidentiality Provisions in Settlements
Many settlements of harassment complaints include confidentiality provisions, preventing victims/survivors from disclosing the underlying facts, thus protecting repeat harassers. Two new laws place restrictions on such provisions.
SB 820 expands restrictions on so-called “secret settlements.” Existing law prohibits settlement agreements from including non-disclosure provisions with respect to resolutions of civil actions for certain enumerated sexual offenses. SB 820 expands this restriction to resolutions of civil actions or complaints filed with government agencies regarding various forms of sexual harassment or discrimination and any claims for sexual assault not already covered by the law. However, plaintiffs retain the right to request provisions that shield their identity.
SB 1300 prohibits employers from conditioning an employee’s continued employment or receipt of a raise or bonus by requiring employees to sign a release of their rights to file a claim or that requires employees to sign a statement that the employee does not have any claims against the employer. Employers are further prohibited from requiring an employee to sign a nondisparagement or other agreement that includes a nondisclosure provision regarding unlawful behavior in the workplace. However, a negotiated settlement agreement resolving a formal legal or internal complaint of harassment is an exception, meaning that such an agreement may contain a nondisclosure provision. It remains unclear whether SB 1300’s prohibitions extend to a severance agreement in a layoff scenario in which the employee has not raised any complaints.
5. Additional #MeToo Related Laws
Various bills reflect the #MeToo movement’s impact. The California Civil Code established liability for sexual harassment when there are specified business, service or professional relationships between the plaintiff and defendant. This included attorneys, social workers, real estate agents and real estate appraiser relationships. SB 224 expands this list to include investors, elected officials, lobbyists, directors and producers, and it eliminates the prior requirement that the plaintiff prove that he or she was unable to easily terminate the relationship.
AB 403 enacts the Legislative Employee Whistleblower Protection Act, which imposes criminal and civil liability on a legislator (or certain legislative employees) who retaliates against a legislative employee because of their good faith allegation of a legal violation, including sexual harassment. A companion bill in the Senate, SB 419, was also enacted which protects legislative staffers and those that advocate before the legislature from retaliation for coming forward and reporting all forms of harassment in the legislature. This bill further requires the legislature to keep and maintain records of harassment complaints for 12 years.
AB 2338 covers talent agencies and minors working in the entertainment industry. Talent agencies must provide educational materials regarding harassment prevention and reporting resources to its artists, whereas the entertainment industry must provide harassment prevention training to minors and their parents or guardians before the minor can be represented or auditioned.
AB 1896 addresses sexual assaults on college campuses, specifically relating to confidential and privileged communications between a victim of sexual assault and a sexual assault counselor. There had been uncertainty as to whether the privilege applied to counseling at college campuses. This law clarifies that it does.
Clarifications Regarding Inquiries into Salary History (Fair Pay Act Clarified)
The California Fair Pay Act prohibits employers from relying on an applicant’s salary history in determining whether to extend a job offer or in determining starting pay. It also requires that upon reasonable request, an employer must provide the pay scale for the applicant’s position. This law created various ambiguities. AB 2282 resolves some of them.
The new law provides that employers may ask applicants their salary expectation for the position. It also defines “applicant” as an individual who is seeking employment with the employer and is not currently employed in any capacity, “pay scale” as a salary or hourly wage range and a “reasonable request” as a request by an applicant after an initial interview.
AB 2282 further states that a compensation decision may be based on a current employee’s existing salary, so long as any wage differential is justified by one or more of the factors described in the law (for example, education, training, experience, etc.).
Existing law requires all California employers to provide a reasonable amount of break time for new mothers to express breast milk and requires employers to make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area for this purpose. AB 1976 eases these requirements to some extent by requiring employers to make reasonable efforts to provide an employee with the use of a room or other location, other than a bathroom. The new law authorizes a temporary lactation location that meets the specified conditions, including that the temporary location be used only for lactation purposes while an employee expresses milk. An agricultural employer will be in compliance by providing a private, enclosed, and shaded space.
Military Service Member Discrimination
SB 1500 clarifies the anti-discrimination protections for military service members to include all members of the United States Armed Forces. It further expands protections to include all federal reserve components of the United States Armed Forces and the state military reserve.
Payroll Record Requests
SB 1252 is a striking example of a technical correction necessitated by certain employers taking advantage of workers. The Labor Code sets forth requirements for itemized wage statements to be provided with each paycheck, and employees have the right to “inspect or copy” such records. SB 1252 provides that employees have the right to receive a copy of such records. In support of this bill, the California Rural Legal Assistance Foundation noted that some unscrupulous employers informed workers that the “copy” language in the Labor Code meant they had to bring a copying device into the employers’ offices and make the copy themselves.
Criminal History Pre-Hire Considerations
Employers have been prohibited from asking applicants about or considering judicially sealed or expunged criminal convictions when making hiring decisions with certain specified exceptions, including for positions where an employer is required by law to restrict employment based on criminal history. SB 1412 clarifies that employers are prohibited from asking an applicant about criminal convictions that have been judicially dismissed or ordered sealed by limiting employer inquiries to “particular convictions” where conviction of a crime would legally prohibit someone from holding that job.
San Francisco Fair Chance Ordinance Expansion
Effective October 1, 2018, the San Francisco Fair Chance Ordinance was expanded to cover employers that have 5 or more employees. This ordinance prohibits employers from inquiring about, requiring disclosure of, or basing employment decisions on an applicant’s criminal conviction history until after a conditional job offer. For more information, see https://sf-hrc.org/fair-chance-ordinance
Employer “To Do” Items
- Make a plan to provide harassment prevention training for all non-supervisory staff.
- For employers with less than 50 employees, roll out harassment prevention training for supervisors.
- Seek legal advice before providing employment references that mention the specific circumstances of any employee’s departure.
- Have legal counsel prepare, review and approve all settlement and release agreements (that is, avoid relying on templates that may not be consistent with current legal restrictions).
- Ensure that those involved in interviewing candidates are trained on the appropriate compensation questions that may be asked.
- Ensure that appropriate lactation accommodations are available before an employee returns from pregnancy leave (not after).
For more information or assistance with employment law compliance matters, please contact Ms. Topliff at email@example.com.