New Employment Laws

Fall 2018 New Employment Laws – Part 4 – Sexual Harassment

New Sexual Harassment Laws

Over the past year, many prominent entertainers and public figures have been brought down by accusations of sexual misconduct. The #MeToo movement changed our culture, bringing to light issues of sexual harassment and assault left in the dark for years. The movement reached the California Legislature, who passed many new sexual harassment laws this year expanding employee protections and increasing employer liability. There is also a new requirement for gender representation on corporate boards.  Some changes are narrowly targeted, while others impact most or all California businesses. All will have a major impact on California employers and employees.

Broad New Sexual Harassment Protections

Defamation Protection: AB 2770 protects people who report sexual harassment from libel or defamation suits. It exempts both an employee’s credible reports of sexual harassment and an employer’s communications about these reports from claims of defamation. It also makes the law clear that past employers can say whether they would rehire an employee and whether that determination is based on claims of sexual harassment when asked for references. Accusations based on malice or lacking credibility are exempt from this protection.

Confidentiality Clauses and Nondisclosure Agreements: The Legislature limited confidentiality clauses in certain settlement agreements. In lawsuits regarding sexual assault, sexual harassment, or any other sex-based harassment (such as in the workplace or housing), settlement agreements can no longer require confidentiality. SB 820 provides an exception to keep victims’ identities secret, however. And AB 3109 prohibits any clauses in nondisclosure agreements that prevent people from testifying in court or administrative hearings about criminal conduct or sexual harassment. Both these provisions go into effect on January 1st, 2019.

Training: SB 1343 expands new sexual harassment prevention training to all employers with five or more employees. Going into effect on January 1st, 2020, all companies covered must provide two hours of training to supervisors and one hour of training to all other employees within six months of hire, and again every two years.

Training must contain information about “the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment.” Temporary employees must be trained “within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first” and temp agencies must perform this training. Employers with 50 or more employees are already required to provide this training.

SB 1300: The California Legislature made many broad changed to employment practices and sexual harassment laws with SB 1300. First, it prohibited employers from requiring employees waive rights to sue or make other claims under the  Fair Employment and Housing Act in exchange for a job, raise, or bonus. This prohibition also applies to non-disparagement agreements that prevent employees from talking about unlawful conduct in a workplace.

Second, the Legislaturemade businesses liable for any unlawful harassment of employees, interns,applicants, or contractors by non-employees “if the employer, or its agents orsupervisors, knows or should have known of the conduct and fails” to act.Essentially, “An entity shall take all reasonable steps to prevent harassmentfrom occurring” under its watch. Third, this law prevents defendants who win inFEHA lawsuits from being awarded fees and costs unless the suit is frivolous or ungrounded. 

Industry-Specific Sexual Harassment Changes

Not every change is so sweeping. Many new laws passed this year touch only certain sectors of the economy:

Talent Agencies: AB 2338 requires talentagencies in California to provide materials about “sexual harassmentprevention, retaliation, and reporting resources” and “nutrition and eatingdisorders” to adult artists in a language they understand. It also requiresminors and their legal guardians to receive sexual harassment preventiontraining before they receive an entertainment industry work permit. Talentagencies must keep three years of records as proof of training.

California Legislature: The Legislature triedto clean up its own workplace. AB 403 makes it a crime for legislators or theirstaff to interfere in a whistleblower’s disclosure of violations or retaliatesagainst them. SB 419 further protests legislative staff or lobbyists fromretaliation and requires the Legislature to keep complaint records for 12years.

Professionals: Current law makes professionals liable for sexual harassment in a professional relationship when it is difficult for the victim to end that relationship. SB 224 adds investors, elected officials, lobbyists, directors, and producers to this category, which also includes lawyers, doctors, social workers, real estate agents, bankers, and any“substantially similar” professional relationship setups.

Gender Representation

The Legislature also took steps toward requiring gender parity on corporate boards. SB 826 requires publicly heldcorporations based in California to have at least one female director on itsboard by the end of 2019. By the end of 2021, the requirement is bumped up totwo or three women depending on the board’s size. The CA Secretary of Statewill post the number of companies in compliance on its website, and can finethose who are not.

2018 was a big year for new sexual harassment and gender-related employment laws. It can be very confusing for employers to keep track of their requirements and employees to stay informed of their rights. If you have questions, contact Robert Nuddleman.

Provided by the Nuddleman Law Firm, P.C.

Written by J.T. Keane and edited by Robert E. Nuddleman

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The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.