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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.

New San Francisco Employment Laws

San Francisco tends to be on the forefront of passing new employment laws to protect San Francisco workers. The following are two new San Francisco Employment Laws that companies and workers in San Francisco need to consider.

New San Francisco Employment Laws No. 1:

Mayor Lee signed the “Lactation in the Workplace Ordinance” on July 30, 2017.  This “first of its kind in the country” ordinance establishes new standards to ensure employers accommodate lactation.

The ordinance amends the Police Code to require employers to provide employees lactation breaks and a location for lactation. Employers must have a policy regarding lactation in the workplace that specifies a process “by which an employee will make a request for accommodation.” The ordinance defines minimum standards for lactation accommodation spaces and requires that tenant improvements or renovated in buildings designated for certain uses include lactation rooms. The ordinance also outlines lactation accommodation best practices.

The ordinance becomes operative on January 1, 2018. 

You can review the full ordinance here.

New San Francisco Employment Laws No. 2:

On July 14, 2017, Mayor Lee signed the “Employer Consideration of Applicant’s Salary History Ordinance,” also known as the “Consideration of Salary History Ordinance“.  This ordinance (which also becomes operative on July 1, 2018, applies to employers in San Francisco and to the City and County of San Francisco’s contractors and subcontractors. The intention is to “ensure that an individual’s prior earnings, which may reflect widespread, longstanding, gender-based wage disparities in the labor market, do not continue to weigh down a woman’s salary throughout her career.”

The ordinance amends the Police and Administrative Codes and ban employers from considering current or past salary of an applicant in determining whether to hire an applicant or what salary to offer the applicant. The ordinance prohibits employers from asking applicants about their current or past salary. Employers cannot disclose employee salary history without that authorization (unless the salary history is publicly available).

You can review the full ordinance here.

You can review some of my prior articles about some of the San Francisco Employment Laws passed over the years:

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. 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. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

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.

Presentation at EB Low Cost Ed Day

On Saturday, October 29th, I’ll be conducting a presentation at CalCPA’s East Bay Low Cost Ed Day. I’m looking forward to the presentation, where I will discuss Wage & Hour Best Practices – How to Best Advise Your Clients in this Complex Area.

Presentation Topics

  •   Employees v. Independent Contractors
    • Differences
    • Consequences of Misclassification
  •  Applicable laws & Agencies
    •  State v. Federal v. City/County
    • IWC & Wage Orders
    • City/County Ordinances
    • Opinion Letters
    • Enforcement Manual
  • Basic Pay Requirements
    • Minimum Wage
    • Regular “Workdays” and “Workweeks”
    • Regular Rate of Pay
    • Overtime
    • Bonuses & Commissions
  •  Exempt & Non-Exempt Employees
    • Nonexempt Employees
    • Exempt Employees – salary + duties
  • Meal and rest periods
  • How/when to pay employees
    • Time record requirements
    • Pay stub requirements
    • Deductions from pay
    • Payment upon separation
  • Employees In or About the Home
    • Caregivers
    • Other Household Employees
    • Special Rules for Live-Ins

I will be presenting from 1:00 p.m. to 2:40 p.m. at the Crow Canyon Country Club. You can register here and the event is open to members and non-members.

I hope to see you there.

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. The use of the Internet or this blog for communication with the firm or any individual member of 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.

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.

New California Employment Laws for 2016

Lest you think the California Legislature and Governor Brown have been idling away their time in office, the following is a list of the new California Employment Laws for 2016 passed in our state.  Some will affect all employers, others just a few.  Be on the look out for more in depth analysis of the new laws in upcoming articles.

AB 202 by Assemblymember Lorena Gonzalez (D-San Diego) – Professional sports teams: cheerleaders: employee status.

AB 215 by Assemblymember Luis Alejo (D-Watsonville) – Local agency employment contracts: maximum cash settlement.

AB 219 by Assemblymember Tom F. Daly (D-Anaheim) – Public works: concrete delivery.

AB 229 by Assemblymember Ling-Ling Chang (R-Diamond Bar) – State employees: travel reimbursement.

AB 285 by Assemblymember James M. Gallagher (R-Nicolaus) – Professions and vocations: registration.

AB 304 by Assemblymember Lorena Gonzalez (D-San Diego) (7/13/15) – Sick Leave: Accrual and Limitations; Clarification.

AB 359 by Assemblymember Lorena Gonzalez (D-San Diego) – Grocery workers. A signing message can be found here.

AB 375 by Assemblymember Nora Campos (D-San Jose) – School employees: sick leave: paternity and maternity leave.

AB 506 by Assemblymember Brian Maienschein (R-San Diego) – Limited liability companies.

AB 546 by Assemblymember Lorena Gonzalez (D-San Diego) – Peace officers: basic training requirements.

AB 599 by Assemblymember Susan Bonilla (D-Concord) – Clinical laboratories: cytotechnologists.

AB 621 by Assemblymember Roger Hernández (D-West Covina) – Drayage truck operators: Motor Carrier Employer Amnesty Program.

AB 622 by Assemblymember Roger Hernández (D-West Covina) – Employment: E-Verify system: unlawful business practices.

SB 623 by Senator Ricardo Lara (D-Bell Gardens) – Workers’ compensation: benefits

AB 630 by Assemblymember Eric F. Linder (R-Corona) – Public officers and employees: oath of office.

AB 705 by Assemblymember Susan Talamantes Eggman (D-Stockton) – Psychologists: licensure exemption.

AB 830 by Assemblymember Susan Talamantes Eggman (D-Stockton) – Civil actions: gender violence.

AB 852 by Assemblymember Autumn R. Burke (D-Inglewood) – Public works: prevailing wages.

AB 868 by Assemblymember Jay P. Obernolte (R-Big Bear Lake) – Public Employees’ Retirement System: contracting agencies: transfer of membership.

AB 897 by Assemblymember Lorena Gonzalez (D-San Diego) – Grocery workers.

AB 963 by Assemblymember Susan Bonilla (D-Concord) – Teachers’ Retirement Law.

AB 970 by Assemblymember Adrin Nazarian (D-Sherman Oaks) – Labor Commissioner: enforcement of employee claims.

AB 987 by Assemblymember Marc B. Levine (D-San Rafael) – Employment discrimination: unlawful employment practices.

AB 991 by the Committee on Public Employees, Retirement, and Social Security – State teachers’ retirement.

AB 1093 by Assemblymember Eduardo Garcia (D-Coachella) – Public safety: supervised population workforce training: grant program.

AB 1168 by Assemblymember Rudy Salas Jr. (D-Bakersfield) – Peace officers: basic training requirements.

AB 1245 by Assemblymember Ken Cooley (D-Rancho Cordova) – Unemployment insurance: electronic reporting and funds transfers.

AB 1267 by Assemblymember Richard H. Bloom (D-Santa Monica) – Lawsuits, liens, and other encumbrances against public officials or public employees.

AB 1270 by Assemblymember Eduardo Garcia (D-Coachella) – California Workforce Innovation and Opportunity Act.

AB 1291 by Assemblymember Das G. Williams (D-Santa Barbara) – The County Employees Retirement Law of 1937.

AB 1308 by Assemblymember Henry T. Perea (D-Fresno) – Apprenticeship programs: approval.

AB 1339 by Assemblymember Miguel Santiago (D-Los Angeles) – School district employees: merit system: appointments.

AB 1422 by Assemblymember Jim Cooper (D-Elk Grove) – Transportation network companies.

AB 1506 by Assemblymember Roger Hernández (D-West Covina) – Labor Code Private Attorneys General Act of 2004.

AB 1509 by Assemblymember Roger Hernández (D-West Covina) – Employer liability.

AB 1513 by Assemblymember Das G. Williams (D-Santa Barbara) – Employment: workers’ compensation and piece-rate compensation.

AB 1514 by the Committee on Insurance – Employment Development Department: training benefits: reports.

SB 99 by the Committee on Budget and Fiscal Review – State public employment.

SB 216 by Senator Richard Pan (D-Sacramento) – The Public Employees’ Retirement System.

SB 221 by Senator Hannah-Beth Jackson (D-Santa Barbara) – State public employees: sick leave: veterans with service-related disabilities.

SB 327 by Senator Ed Hernandez (D-Azusa) – Industrial Welfare Commission: wage orders: meal periods.

SB 342 by Senator Hannah-Beth Jackson (D-Santa Barbara) – California Workforce Investment Board: responsibilities.

SB 358 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Conditions of employment: gender wage differential.  Press conference statement can be found here.

SB 354 by Senator Bob Huff (R-San Dimas) – California Public Employees’ Pension Reform Act of 2013: joint powers authority: employees.

SB 386 by Senator Ben Allen (D-Santa Monica) – Unlawful business practices.

SB 432 by Senator Tony Mendoza (D-Artesia) – Public works: aliens.

SB 501 by Senator Bob Wieckowski (D-Fremont) – Wage garnishment restrictions.

SB 546 by Senator Mark Leno (D-San Francisco) – Health care coverage: rate review.

SB 560 by Senator William W. Monning (D-Carmel) – Licensing boards: unemployment insurance.

SB 579 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Employees: time off.

SB 588 by Senator Kevin de León (D-Los Angeles) – Employment: nonpayment of wages: Labor Commissioner: judgment enforcement.

SB 644 by Senator Loni Hancock (D-Berkeley) Limited Examination and Appointment Program: persons with developmental disabilities.

SB 667 by Senator Hannah-Beth Jackson (D-Santa Barbara) Disability insurance: eligibility: waiting period.

 

Provided by Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. 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. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

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.