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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

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

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.

I Have a Dream by Martin Luther King, Jr.

As we remember the life and assassination of a great leader, I thought it poignant to recall Martin Luther King, Jr.’s famous “I Have a Dream” speech, delivered August 28, 1963, at the Lincoln Memorial in Washington D.C. His words are an inspiration, and a reminder that although we’ve made great progress toward equality, we are not done.

If you’ve never read the speech in its entirety, or if it’s been a while since you’ve heard the recording, take a few moments. Read it to your children or your grandchildren. Better yet, listen to King deliver the speech. Discuss with your family and friends whether we have lived up to the the dream.  The speech begins by echoing the words Abraham Lincoln recited 100 years earlier. Consider how much progress we’ve made in the more than half a century since King spoke these inspiring words.

Martin Luther King, Jr.’s “I Have a Dream” Speech:

Reprinted from http://www.americanrhetoric.com/speeches/mlkihaveadream.htm

I am happy to join with you today in what will go down in history as the greatest demonstration for freedom in the history of our nation.

Five score years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of their captivity.

But one hundred years later, the Negro still is not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later, the Negro is still languished in the corners of American society and finds himself an exile in his own land. And so we’ve come here today to dramatize a shameful condition.

In a sense we’ve come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the “unalienable Rights” of “Life, Liberty and the pursuit of Happiness.” It is obvious today that America has defaulted on this promissory note, insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked “insufficient funds.”

But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we’ve come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice.

We have also come to this hallowed spot to remind America of the fierce urgency of Now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to lift our nation from the quicksands of racial injustice to the solid rock of brotherhood. Now is the time to make justice a reality for all of God’s children.

It would be fatal for the nation to overlook the urgency of the moment. This sweltering summer of the Negro’s legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. Nineteen sixty-three is not an end, but a beginning. And those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. And there will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.

But there is something that I must say to my people, who stand on the warm threshold which leads into the palace of justice: In the process of gaining our rightful place, we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred. We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again, we must rise to the majestic heights of meeting physical force with soul force.

The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny. And they have come to realize that their freedom is inextricably bound to our freedom.

We cannot walk alone.

And as we walk, we must make the pledge that we shall always march ahead.

We cannot turn back.

There are those who are asking the devotees of civil rights, “When will you be satisfied?” We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality. We can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. *We cannot be satisfied as long as the negro’s basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as our children are stripped of their self-hood and robbed of their dignity by signs stating: “For Whites Only.”* We cannot be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until “justice rolls down like waters, and righteousness like a mighty stream.”

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. And some of you have come from areas where your quest — quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive. Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed.

Let us not wallow in the valley of despair, I say to you today, my friends.

And so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal.”

I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification” — one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today!

I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; “and the glory of the Lord shall be revealed and all flesh shall see it together.”

This is our hope, and this is the faith that I go back to the South with.

With this faith, we will be able to hew out of the mountain of despair a stone of hope. With this faith, we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith, we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.

And this will be the day — this will be the day when all of God’s children will be able to sing with new meaning:

My country ’tis of thee, sweet land of liberty, of thee I sing.

Land where my fathers died, land of the Pilgrim’s pride,

From every mountainside, let freedom ring!

And if America is to be a great nation, this must become true.

And so let freedom ring from the prodigious hilltops of New Hampshire.

Let freedom ring from the mighty mountains of New York.

Let freedom ring from the heightening Alleghenies of Pennsylvania.

Let freedom ring from the snow-capped Rockies of Colorado.

Let freedom ring from the curvaceous slopes of California.

But not only that:

Let freedom ring from Stone Mountain of Georgia.

Let freedom ring from Lookout Mountain of Tennessee.

Let freedom ring from every hill and molehill of Mississippi.

From every mountainside, let freedom ring.

And when this happens, and when we allow freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual:

Free at last! Free at last!

Thank God Almighty, we are free at last!

Provided by Robert Nuddleman of the Nuddleman Law Firm, P.C.

The Nuddleman Law Firm protects the workplace. Our experienced and knowledgeable attorneys bring the highest level of advocacy to attain the results our clients deserve. We represent employers and employees, giving us an advantage over firms that only focus on one side or the other. Our experienced Northern California attorneys handle workplace discrimination, sexual harassment, wrongful termination, unpaid wages, disability discrimination, retaliation and other employment disputes. We represent clients throughout Oakland, Berkeley, Pleasanton, Concord, San Jose, Alameda County, Contra Costa County, Santa Clara County and the Silicon Valley in California.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog for communication with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.