By: Jordan R. Turner, Associate | Brown Law Group

Practice Tips

  • Update employee handbook with new FEHA provisions for sexual harassment;
  • Expand sexual harassment training to non-supervisory, temporary, and seasonal employees; and
  • Read this article for information on how to adjust contractual language and settlement agreements to reflect California’s new policies.

It is difficult to overstate how impactful the “Me Too” movement has been since its inception a little over one year ago. It should come as no surprise that state legislatures have taken notice. As such, on September 30, 2018, California Governor Jerry Brown signed a flurry of legislation designed to strengthen California’s prohibition of workplace harassment. This article summarizes these new pieces of legislation and provides practice tips for employers on how to ensure compliance. Unless otherwise stated, each law discussed below takes effect on January 1, 2019.

I. California rejects the “severe or pervasive” standard of proving actionable sexual harassment.

The California Fair Employment and Housing Act (“FEHA”) prohibits employers from engaging in harassment of an employee or other specified person, and makes the employer liable for harassment of an employee by a non-supervisory co-worker if the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action. SB-1300 adds to the FEHA by extending employer liability to harassment committed by non-employees, thereby prohibiting all forms of third-party harassment. SB-1300 also expressly rejects the “severe or pervasive” legal standard for proving sexual harassment established by the Ninth Circuit in Brooks v. City of San Mateo, thereby allowing an employee’s hostile work environment claim to proceed to trial even where only a single incident of harassing conduct occurred, as long as that conduct unreasonably interfered with the employee’s work performance or created an intimidating, hostile, or offensive working environment. Also, notably, SB-1300 asserts that harassment cases are rarely appropriate for disposition on summary judgment.

SB-1300 further prohibits employers from requiring that employees release claims under FEHA in consideration for a raise or as a condition of employment. Employers are also prohibited from requiring that employees execute any document (including settlement agreements) preventing them from disclosing information regarding unlawful workplace acts.

Employers should update their employee handbooks to include information regarding FEHA’s new sexual harassment requirements. Further, employers should incorporate these new provisions into their required sexual harassment training programs. Finally, employers should remove any language, release forms, or non-disclosure agreements relating to the waiver of FEHA’s sexual harassment provisions, and be sure that they do not require employees to waive their ability to disclose unlawful workplace acts.

II. California expands its requirements on sexual harassment training.

SB-1343 expands California’s requirements regarding sexual harassment training, providing that employers with five (5) or more employees, including temporary or seasonal employees, must provide at least 2 hours of sexual harassment training to all supervisors. Previous law required such training only for employers with 50 or more employees. With respect to temporary or seasonal employees, training must be provided within 30 calendar days after the hire or within 100 hours worked if the employee will work for less than six months.

Further, the SB-1343 requires that employers with five (5) or more employees provide at least one hour of sexual harassment training to all non-supervisory personnel within six months of the assumption of their position, by January 1, 2020, and once every 2 years thereafter.

Accordingly, employers should consult with their employment counsel and recraft their sexual harassment training programs to reflect this new law.

III. California bans confidentiality agreements and secret settlements in cases involving sexual harassment.

With SB-820, also known as the Stand Together Against Non-Disclosures Act (“STAND Act”), California has effectively banned the use of so-called “secret settlements” in cases involving workplace sexual harassment, sexual misconduct, and/or sexual assault. Specifically, the bill prohibits confidential provisions in settlement agreements that prevent the disclosure of factual information relating to certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, that are filed in a civil or administrative action. Such provisions are now considered void as a matter of law and against public policy, except when included at the request of the employee.

Accordingly, employers should remove confidentiality language in their settlement agreements for claims of sexual harassment, sexual assault, sexual discrimination, and sexual misconduct, where such language prevents the disclosure of factual information relating to those claims.

IV. California bans contractual provisions that waive employees’ right to testify in a legal proceeding regarding criminal conduct or sexual harassment.

AB-3109 prohibits employers from utilizing provisions in a contract or settlement agreement that waive an employee’s right to testify in an administrative legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment. This bill is intended to protect Californian’s Constitutional right to petition the state government for redress of grievances and to freely assemble, speak, write, and publish his or her sentiments with respect to the abuse of this right. On this basis, AB-3109 deems void and unenforceable any provision that contains such a waiver.

Thus, employers should remove any language in settlement agreements amounting to a waiver of an employee’s right to testify in matters relating to criminal conduct or workplace sexual harassment.

In light of the above legislation, employers should enlist the services of their employment counsel to review their contractual templates and recraft their training regiments in order to ensure compliance. For more information, feel free to contact the employment attorneys at Brown law Group.

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