October 12, 2018 • Benjamin J. Herold
Category: Legal Updates
On September 30, 2018, Governor Jerry Brown signed a number of bills that will have a major impact on businesses operating in California. All of the following will take effect January 1, 2019, with the exception of Senate Bills 1123 and 1343 (described in further detail below)
ALTERING THE LANDSCAPE OF SEXUAL HARASSMENT CLAIMS IN THE WORKPLACE
Lowering the Bar for Plaintiffs to Bring Harassment Claims (SB 1130): The Fair Employment and Housing Act (FEHA) establishes employer liability for harassment in three general situations: 1) where the employer itself is alleged to have perpetrated acts of harassment against an employee; 2) where the employer is aware of acts of harassment by one employee against another and fails to take corrective action; and, 3) where the employer is aware of sexual harassment perpetuated by a non-employee against an employee and fails to take corrective action. This bill would expand employer liability with regard to acts by non-employees to cover any act of harassment (rather than only acts of sexual harassment) the employer is made aware of and fails to address with the appropriate corrective action
The bill will also prohibit employers from making raises, bonuses or promotions contingent upon the execution of a release of a claim of right or a non-disparagement agreement. Any such provisions entered into subsequent to the effective date of this Bill will be void as contrary to public policy.
Finally, the bill eliminates a prevailing Defendant’s entitlement to attorney’s fees and court costs absent a showing that the action was frivolous and significantly raises the bar on motions for summary judgment regarding claims of hostile work environment.
Mandatory Sexual Harassment Training Coming Soon to Many More Employers (SB 1343) – effective January 1, 2020: The FEHA has previously mandated employers with fifty or more employees to provide at least two hours of training regarding sexual harassment, gender harassment and abusive conduct to all supervisory employees within six months of their assumption of the position and again once every two years.
This bill will expand these requirements to any employer with five or more employees. As a cost-saving measure for small businesses, the bill will also mandate that the Department of Fair Employment and Housing provide a web-based training course to assist employers in satisfying this requirement.
New Rule Expanding Privileges Against Defamation Claims (Assembly Bill 2770): It is long settled that an employee or employer who makes a good-faith claim related to a colleague’s job performance or qualifications (whether true or false) shall be shielded from any subsequent defamation claim.
This new bill explicitly expands the existing privilege to the arena of sexual harassment claims. The new bill will shield employees from defamation liability for good-faith complaints made to their employer related to sexual harassment in the workplace. The bill will also allow former employers to answer whether or not they would re-hire a former employee and, importantly, whether the decision to not rehire is based on a determination that the former employee engaged in sexual harassment.
Expanding the Prohibition on “Secret Settlements” (SB 820): California law prohibits confidentiality clauses in settlement agreements regarding certain enumerated sex offenses. Expanding on the existing law, this new bill will explicitly prohibit a court from entering any civil settlement agreement containing a confidentiality clause intended to prevent the disclosure of factual information regarding claims of sexual harassment, sexual assault, or sex discrimination.
Amending the Rule for Accommodating Lactation (Assembly Bill 1976): Until now, employers were required to provide “the use of a room or other location, other than a toilet stall,” within which an employee could express milk in private. The new bill requires employers to not only provide a dedicated space, but to ensure that such a space is, “private and free from intrusion,” and is, “only used for lactation purposes while an employee expresses milk.” Notably, the bill expressly disqualifies bathrooms as locations to accommodate lactation.
Expanded Coverage for Paid Family Leave (SB 1123) – effective January 1, 2021: This bill will expand the scope of paid family leave to cover employees who take time off to participate in a “qualifying exigency” related to covered military active duty. “Qualifying exigencies” will be defined to include: official ceremonies; financial, legal and child care arrangements; and accompaniment of a spouse, domestic partner, child or parent on their period of rest and recuperation.
Clarification of a Rule for Requesting Salary History Information (Assemble Bill 2282): The purpose of this bill is to clarify some confusion resulting from a recent ban on inquiring into the salary history of prospective employees. The amended section of the Labor Code will now specify that employers are entitled to inquire into a prospective employee’s salary expectations. The bill also clarifies that a prospective employee is entitled to review the employer’s pay scale (salary or hourly wage range) upon request following the completion of an initial interview.
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