Our California legislators have been listening and taking action, as evidenced by ten 2019 Me-Too-Movement Laws, signed by Governor Jerry Brown, which do the following:
- protect targets of sexual harassment and sexual assault;
- clarify and codify sexual harassment case law;
- expand liabilities for employers and professionals;
- shield employers from defamation claims for revealing that an employee would not be rehired because the employer determined the employee engaged in sexual harassment or sexual misconduct;
- require small employers with 5 or more employees to provide harassment and bullying training;
- prohibits sexual harassment settlement agreement confidentiality and non-disclosure agreements; and
- bans waivers of right to testify concerning alleged criminal conduct or sexual harassment.
Certainly, these 2019 Me-Too-Movement Laws require careful review and, in some cases preventive action. This might include:
1. updating handbook policies;
2. training supervisors, managers and employees, and;
3. revising standard settlement and confidentiality agreements.
Employers and business professionals are encouraged to consult with legal counsel to take proactive steps to ensure legal compliance and prevent harassment and bullying in the workplace.
This blog will be presented in three parts:
Part 1: 2019 Me-Too-Movement Laws;
Part 2: Other 2019 California Employment Laws; and
Part 3: 2019 Industry Specific Employment Laws and Local Ordinances.
You will find a summary of all 2019 Me-Too-Movement laws, as well as a clickable links to the actual laws. Simply click on the bill numbers below.
Noteworthy, all bills go into effect on January 1, 2019, unless specifically stated otherwise in the bill, and/or as noted below.
2019 Me-Too-Movement Laws
Damned If You Do, Dammed If You Don’t Is A Thing of the Past
AB 2770: Harassment Defamation Protection for Employers
Employers face a dilemma. Typically, employers restrict supervisors and managers from giving employee job references. Instead they direct all such inquiries to authorized individuals who have knowledge of the laws and the liabilities that can arise from such references.
Revealing too much information can result in a defamation claim. And, of equal importance, failing to disclose a history of violence or sexual misconduct can result in a negligent referral claim.
Gone are the days of giving no references or providing only “name, rank and serial number”.
While employers have been protected by law when indicating to potential new employers whether they would rehire a current or former employee, there were no protections for revealing that the employee would not be rehired because the employer determined that the employee engaged in sexual harassment or sexual misconduct.
AB 2770 to the Rescue
Finally, it appears this new law protects not only employers, but also clarifies and codifies the privileged publication. Specifically, when an employee communicates a credible allegation of sexual harassment to the employer, this communication is considered a privileged publication and thus not subject to a defamation claim.
Section 47 of the California Civil Code (Privileged Publication or Broadcast) adds to subdivision (c) the following language:
“This subdivision applies to and includes a complaint of sexual harassment by an employee, without malice, to an employer based upon credible evidence and communications between the employer and interested persons, without malice, regarding a complaint of sexual harassment.”
“This subdivision authorizes a current or former employer, or the employer’s agent, to answer, without malice, whether or not the employer would rehire a current or former employee and whether the decision not to rehire is based upon the employer’s determination that the former employee engaged in sexual harassment.”
2019 Me-Too-Movement Laws Action Steps for AB 2770
Educate and train individuals responsible for providing employee references.
What Do Elected Officials, Lobbyists, Venture Capitalists, Investors, and Entertainment Directors and Have in Common?
They get to join the potential “Bad Boys List”.
SB 224: Professional Relationships/Harassment- Expansion
Accounts of sexual harassment by well-known and influential individuals (mostly men) in the venture capital, entertainment and government industries over the past year caused legislators to want to highlight already existing law.
Civil Code Section 51.9 imposes civil liability for sexual harassment in “business, service or professional relationships” and specifically added examples of the types of individuals this law is meant to cover.
The existing law lists examples of such relationships, including:
- trust officer,
- landlord or property manager,
- real estate agent or appraiser,
- building contractor, or
- escrow loan officer.
The existing law did not limit liability to these professionals, and this new bill doesn’t either.
However, the legislature did want individuals in certain high-powered industries to take note. So, the legislators added these professionals to their list of examples of business, service or professional relationships.
New Law adds these professionals to the list:
- elected officials,
- directors and producers
All of these professionals are now specifically identified as subject to civil liability for engaging in “sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaging in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.”
2019 Me-Too-Movement Laws Action Steps for SB 224
Employers, as well as self-employed professionals, should educate employees and themselves about the requirements of this law and establish professional protocol when engaging with clients/vendors, etc. in professional and business relationships.
NDA’s (Non-Disclosure Agreements) Will No Longer Silence or Discourage Targets of Sexual Harassment/Sexual Assault to Come Forward
SB 820: Sex Harassment Settlement Agreement Confidentiality Restrictions
The bill prohibits and makes void any provision in a settlement agreement that prevents the disclosure of factual information related to civil or administrative complaints of sexual assault, sexual harassment, and workplace harassment or discrimination based on sex.
Additionally, the law does not prohibit the entry or enforcement of a provision in any agreement that precludes the disclosure of the amount paid in settlement.
The law also protects the claimant’s identity and any fact that could reveal the identity, so long as the claimant has requested anonymity and the opposing party is not a government agency or public official.
2019 Me-Too-Movement Laws Action Steps for SB 820
Employers should review standard Confidentiality Agreements and Settlement Agreements to ensure they do not include non-disclosure agreements that restrict an employee’s rights to disclose information related to civil or administrative complaints of sexual assault, sexual harassment, and workplace harassment or discrimination based on sex.
Legislators Give Teeth to Equal Opportunity Laws to Succeed in the Workplace
SB 1300: Unlawful Employment Practices: Discrimination and Harassment
SB 1300 addresses existing gaps in the law that deny Equal Opportunity to all employees in the workplace, as well as:
- affirms and rejects certain judicial decisions;
- expands employer’s liability to non-employees to all forms of unlawful harassment;
- prohibits employers from requiring an employee to sign a release of Fair Employment & Housing Act (FEHA) claims or rights or prohibiting disclosure of information about unlawful acts in the workplace as a condition of employment, raise, or bonus;
- prohibits prevailing defendant from being awarded attorney’s fees and cost unless court finds the action was frivolous, unreasonable or groundless; and,
- authorizes employers to provide “bystander intervention” training to its employees. This training to provide practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training and education may include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.
2019 Me-Too-Movement Laws Action Steps for SB 1300
Due to the comprehensive nature of this law, employers will want to review this law in depth and take proactive steps to educate supervisors and manager, as well as update policies, procedures and employment forms.
Personal Liability for Retaliation (SB 1038) was VETOED.
This bill would have subjected employees alleged to have engaged in harassment to personal liability for retaliation, discrimination and other adverse actions taken against any person who has opposed practices forbidden by FEHA or participated in a FEHA Action.
However, even though this bill was vetoed, employers must ensure that their harassment prevention policy includes prohibitions against retaliation. In Jones v. The Lodge at Torrey Pines Partnership, the California Supreme Court ruled that supervisors are not personally liable for retaliation under FEHA. Retaliation is different from harassment, for which supervisors can be held personally liable.
Eyes Wide Open: Small Employers Can No Longer Stick Their Heads in the Sand on Uncomfortable Topics
SB 1343: Sexual Harassment Training (Includes Abusive Conduct, Gender Identity, Gender Expression and Sexual Orientation)
Employers with 50 or more employees are currently required to offer sexual harassment training for supervisors. This bill expands the existing sexual harassment training law by requiring employers with 5 or more employees, including temporary or seasonal employees, to provide:
- at least 2 hours of sexual harassment training to all supervisory employees; and.
- at least one hour of sexual harassment training to all non-supervisory employees by January 1, 2020, and once every 2 years thereafter.
This training must include prevention of abusive conduct (which includes bullying), as well as harassment training based on gender identity, gender expression, and sexual orientation.
The harassment training must be presented by trainers or educators with knowledge and expertise in these areas.
Finally, the Department of Fair Employment and Housing (DFEH) is required to develop/obtain two online training courses which will be available on its Internet Web site. The online training courses must contain an interactive feature that requires the viewer to respond to a question periodically in order for the online training courses to continue to play.
Employers may create their own training programs, or may utilize the DFEH’s online training courses.
2019 Me-Too-Movement Laws Action Steps for SB 1343
Although supervisor or employee harassment training is not currently required for employers with less than 50 employees, small employers are still responsible for providing a workplace free of harassment, discrimination and retaliation. This includes prohibiting bullying and abusive conduct.
In addition, current law requires all employers to develop and distribute a written harassment, discrimination and prevention policy to all employees. Employees must also sign a written acknowledgement of receipt. Employers are also required to post a required notice and distribute a required anti-harassment brochure. Please see California Code of Civil Regulations 11023.
Additionally, since employee and supervisory training will now be required for all employers with 5 or more employees no later than December 31, 2019, we suggest you begin to prepare how you will provide this training. Will you wait until the DFEH provides online interactive training later in 2019? Or will you prepare your own internal training materials? To assist you with this, the DFEH has created an Employer Resources page, and a Training Toolkit, which includes a sample Sexual Harassment Employee Prevention Training PowerPoint, and Frequently Asked Questions re this new law. Keep in mind that if you decide to create and deliver your own training, you must use a qualified trainer.
Free Speech Protected for Alleged Criminal Conduct or Sexual Harassment
SB 3109: Bans Waivers of Rights to Testify
This bill would make a provision in a contract or settlement agreement void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.
2019 Me-Too-Movement Laws Action Steps re SB 3109
Employers will want to review all contracts and settlement agreements to ensure compliance with this new law. Additionally, all individuals involved in company contracts should be educated on this law.
HARASSMENT LAWS FOR SPECIFIC INDUSTRIES
AB2338: Talent Agency Industry: Sexual Harassment Education
This bill requires a talent agency to provide educational materials to its artists on:
1. sexual harassment prevention, and retaliation,
2. reporting resources; and
3. nutrition and eating disorders.
This law requires these educational materials to be in a language the artist understands, and would require the licensee, as part of the application for license renewal, to confirm with the commissioner that it has and will continue to provide the relevant educational materials.
AB 3082: In-Home Support Services (IHSS) Industry: Sexual Harassment Education and Tracking
This bill requires the State Department of Social Services (SDSS) to develop standard educational materials about sexual harassment and the prevention thereof to be made available to IHSS providers and recipients. Additionally, SDSS shall develop a proposed method for uniform data collection to identify the prevalence of sexual harassment in the IHSS program.
The bill would require the department, on or before September 30, 2019, to provide a copy of the educational materials and a description of the proposed method for uniform data collection to the relevant budget and policy committees of the Legislature.
SB 970: Hotel and Motel Industries
Employees Who Have Reoccurring Interactions with the Public: Human Trafficking Awareness
By January 1, 2020, an employer shall provide at least 20 minutes of classroom or other effective interactive training and education regarding human trafficking awareness to each employee who is likely to interact or come into contact with victims of human trafficking. The training must be provided for employees who are employed as of July 1, 2019, and, within six months of his or her employment in that role, to each new employee who is likely to interact or come into contact with victims of human trafficking.
After January 1, 2020, an employer shall, once every two years, provide human trafficking awareness training and education to each employee who is likely to interact or come into contact with victims of human trafficking. Training shall be provided to each new employee within six months of his or her employment in that role.
Coming Soon: When posted on the blog, links will be provided to topics below:
Part 2: Other California Employment Bills
Part 3: Industry Specific Bills and Local Ordinances
You might be also interested in this blog: Me Too for Employers: Employer Resources.
The Independent Contractor Dilemma after California Supreme Court Dynamex case (the “ABC” case).
What Does the Dynamex Case Mean for Beauty Salons, Housekeepers and Other Industries Who Primarily Utilize Independent Contractors for Staffing?
Contact Chuck with questions.
Feel free to call (530) 273-0800 with questions about this blog or to schedule an appointment for assistance with compliance and prevention strategies.
This Blog/Web Site is made available by the Law Office of Chuck Farrar for educational purposes only as well as to give you general information and a general understanding of the law in California, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the The Law Office of Chuck Farrar. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.