This is the time of year that Californians, especially California businesses, learn of the slew of new laws that will go into effect in the coming year. This year is not any different and the new laws are reflective of the social discussions around sexual harassment over the course of the last couple of years. California employers now have a number of laws that will require changes in your documents, training requirements, and how you do business, to name a few. Below is a list of new laws that I thought were the most interesting and relevant by category, although there is inevitably some overlap.
Contracts
1. Employers will be prohibited, with certain exceptions, from requiring an employee to execute a release of a claim or right under the Fair Employment and Housing Act (FEHA) or to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. This is applicable when the release is provided in exchange for a raise or bonus, or as a condition of employment or continued employment. (SB 1300)
2. Confidentiality clauses prohibiting disclosure of factual information related to claims of sexual assault, sexual harassment, sex discrimination, filed in a civil or administrative action will be void. SB 820 adds Section 1001 to the Labor Code and will apply to settlement agreements entered into after January 1, 2019. However, provisions prohibiting the disclosure of the settlement amount is still permissible.
3. Waiver of the right to testify regarding sexual harassment will be unenforceable.AB 3109 adds Section 1670.11 to the Civil Code, which will void and make unenforceable any provision in a contract or settlement agreement entered into after January 1, 2019, that waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment on the part of the other party to the contract or settlement agreement, or on the part of the agents or employees of the other party.
Discrimination
AB 2282 Clarifies the laws on equal pay laws and salary history inquiries.
Harassment
1. SB 1300 adds Section 12923 to the Government Code establishing lower standards for a plaintiff to prevail on harassment and discrimination claims. A single harassing incident will be sufficient to create a triable issue regarding the existence of a hostile work environment. Employers must now be even more vigilant and responsive to complaints of harassment.
2. Employees will also be personally liable for engaging in harassment or retaliation for reporting harassment or discrimination. Amended Section 12940 of the Government Code.
Sexual Harassment
1. Non-employers who have a business, service, or professional relationship with a plaintiff could be liable for sexual harassment. SB 224 amends Section 51.9 of the Civil Code to provide for liability for sexual harassment to include when 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. For example, the sexual harassment of a startup founder by an investor, or harassment of a actress by a director or producer. Elected officials and lobbyists were also specifically named as non-employers who could be held liable for sexual harassment.
2. Communication regarding complaints of sexual harassment against an employee or former employee will be privileged in defamation claims. AB 2770 amends Section 47 of the Civil Code to include complaints of sexual harassment against a former employee as privileged communication for purposes of defamation claims. Thus, a current or former employer is authorized to answer, without malice, whether or not the employer would rehire a current or former employee and whether the decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment.
Corporate Governance
Publicly held corporations whose principal executive office are in California will be required to have at least one female on its board of directors by the close of 2019. By the close of 2021, that number will be increased to 2 female directors if the corporation has 5 directors or 3 female directors if the corporation has 6 or more directors. SB 826 amends the California Corporations Code to add Sections 301.3 and 2115.5, providing reporting requirements and penalties as well.
Training Obligations
1. By 2020, hotels and motels will be required to provide at least 20 minutes of interactive training and education regarding human trafficking awareness to each employee who is likely to interact with or come into contact with victims of human trafficking. Training is required every 2 years and within 6 months of an employee working in such a position. (SB 970)
2. Sexual harassment prevention training expanded to employers with 5 or more employees, including temporary or seasonal employees. SB 1343 amends Sections 12950 and 12950.1 of the Government Code to require smaller employers to provide at least 2 hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every 2 years thereafter.
The legislature and the Governor placed a high priority on issues of sexual harassment this legislative period, and so has the enforcement agencies. Thus, if you have employees in California, this is the perfect time to ensure that your policies and procedures ensure that you are not only in compliance but that you are protected as well as your employees.