Don’t Stand So Close to Me: Ten California Sexual Harassment Bills to Watch

by Orrick - Global Employment Law Group
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In tandem with the growing #MeToo movement, sexual harassment appears to be top of mind for California legislators in 2018. In the wake of Harvey Weinstein, Bill Cosby and the like, California has been flooded with an unprecedented number of bills aimed at combatting sexual harassment.  The 20+ pending bills take on topics ranging from confidentiality provisions to increased mandatory harassment training.  Now more than ever, employers must pay heed to how sexual harassment issues are handled at their companies. Here are the highlights from the top 10 bills that – if passed – will most likely impact employers:

Senate Bill 820 would prohibit settlement agreement provisions that prevent the disclosure of facts related to claims of sexual assault, sexual harassment or sex discrimination cases. Otherwise known as the STAND (Stand Together Against Non-Disclosures) Act, the bill would apply to agreements entered into after January 1, 2019 and would create an exception where a complainant requests a nondisclosure provision (unless the defendant is a government agency or public official, in which case the exception would not be available). The STAND Act passed the Senate Judiciary Committee on May 1, 2018 with a vote of 5-1, and is now headed to a full vote in the Senate. Assembly Bill 3057 contains similar prohibitions, and is currently in the Assembly Appropriations Committee.

While employees may be personally liable for Fair Employment and Housing Act (FEHA) harassment claims under existing law, Senate Bill 1038 would extend personal liability to employees for FEHA retaliation against a person who filed a complaint or opposed a prohibited practice, including alleged harassment or discrimination. The bill is currently with the Senate Appropriations Committee.

Senate Bill 1300 would amend FEHA to (1) allow a plaintiff to sue her employer for failure to prevent discrimination and harassment without needing to prove that she actually endured any discrimination or harassment; (2) prohibit a release of FEHA claims in exchange for a raise or bonus, or continued employment; and (3) require all employers – regardless of size – to provide harassment prevention training to all employees within 6 months of their hire and once every 2 years. SB 1300 is currently with the Senate Appropriations Committee.

Senate Bill 1343 imposes similar training requirements to Senate Bill 1300, requiring companies with five or more employees to provide at least two hours of harassment prevention training to all supervisory employees by 2020. Following 2020, companies would need to conduct the training once every two years. Additionally, the bill requires the Department of Fair Employment and Housing (DFEH) to develop a training video and informational posters and fact sheets for companies to use. SB 1343 is currently with the Senate Appropriations Committee.

Assembly Bill 1867 would require an employer with 50 or more employees to maintain records of employee sexual harassment complaints for 10 years. This bill would allow the DFEH to seek an order compelling non-compliant employers to comply. AB 1867 is currently with the Assembly Appropriations Committee.

Assembly Bill 1870 would expand the statute of limitations for an employee to file a DFEH administrative claim from one year to three years. The bill passed the Assembly Committee on Labor and Employment with a vote of 6-0, and is currently with the Assembly Appropriations Committee.

Existing law prohibits an employer from terminating, discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking. Assembly Bill 2366 would extend this protection to victims of sexual harassment. The bill also would expand the definition of family members for whom an employee may take time off to assist them, as victims, seeking relief from domestic violence, sexual assault, stalking, or sexual harassment. The bill is currently with the Assembly Appropriations Committee.

Assembly Bill 2770 considers sexual harassment complaints “privileged communications” by an employee to an employer based upon credible evidence, for communications between the employer and “interested persons,” and would authorize an employer to answer whether the employer would rehire an employee and whether or not the decision not to rehire is based on the employer’s determination that the former employee engaged in sexual harassment. The bill is currently with the Assembly Rules Committee.

Assembly Bill 3080 would prohibit an employer from (1) requiring, either as a condition of employment or contractually, that employees or independent contractors refrain from disclosing sexual harassment that they suffered or witnessed; (2) requiring job applicants or employees to waive any FEHA right as a condition of employment; and (3) from threatening, retaliating, or discriminating against an applicant or employee because of the refusal to sign a consent to a FEHA waiver. The bill passed the Assembly Judiciary Committee with a vote of 5-1, and is currently with the Assembly Appropriations Committee.

Assembly Bill 3081, much like Assembly Bill 2366, prohibits an employer from discharging, discriminating or retaliating against an employee because of his or her status as a victim of sexual harassment (in addition to status as a victim domestic violence, sexual assault, or stalking under existing law). However, unlike Assembly Bill 2366, Assembly Bill 3081 also creates a rebuttable presumption of unlawful retaliation if an employer takes an adverse action against the employee within 90 days following the date he or she provides notice to the employer of sexual harassment. The bill is currently with the Assembly Appropriations Committee.

In addition to these heavy-hitters, other notable anti-harassment bills include: Assembly Bill 1761 (hotel workers and guests), Senate Bill 224 (extended liability where professional relationship exists with elected official, lobbyist, director, producer), Assembly Bill 2338 (talent agencies and models), Assembly Bill 1938 (familial status inquiries), Assembly Bill 3082 (in-home support providers), Assembly Bill 403 (legislature), Assembly Bill 3109 (agreements restricting free speech and reemployment), Assembly Bills 2079 and 1978 (janitors); Assembly Bill 2946 (extended filing time for DLSE complaints).

California is not alone in facing this tidal wave of anti-harassment bills. Similar efforts are appearing across the nation and show no sign of slowing. To the extent not already done in the wake of the #MeToo movement, employers should use this time to examine their sexual harassment policies and procedures and ensure their companies take harassment prevention seriously.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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