2019 LEGISLATION PERTAINING TO SEXUAL HARASSMENT IN THE WORKPLACE
This time of year sees not only the changing of the seasons (as much as we have seasons in California), but this time of year is when we see the many new pieces of legislation that have been signed into law.
Over 1,200 bills were presented to the Governor for consideration and just over 1,000 were signed into law – many of which will impact employers starting January 1, 2019 (while others effective dates are delayed for one or more years). Many of the new laws were the result of the much publicized #MeToo movement.
In this newsletter we will summarize some of the recently enacted laws which create new obligations for employers in the areas of harassment and discrimination including enhanced sexual harassment prevention training and the prohibition of requiring non-disclosure provisions in settlement agreements involving claims of sexual assault, sexual harassment, or sex discrimination.
These laws become effective January 1, 2019, unless otherwise noted.
SEXUAL HARASSMENT PREVENTION TRAINING FOR ALL EMPLOYEES
SB 1343: Senator Holly Mitchell (D-Los Angeles)
As of January 1, 2019, California employers with five or more employees (which count includes seasonal and temporary employees – see below) must provide harassment prevention training to all employees – supervisory and non-supervisory employees by 2020 and thereafter. This new law is in stark contrast to the current law that requires employers with 50 or more employees to conduct prevention training only to supervisory employees once every two years (referred to as AB 1825 Training).
Under the new law, sexual harassment prevention training must be provided as follows:
- By January 1, 2020, an employer with five or more employees must provide at least two hours of training to all supervisory employees in California within six months of their assumption of a position.
- By January 1, 2020, an employer with five or more employees must provide at least one hour of training to all non-supervisory employees in California within six months of their assumption of a position.
- After January 1, 2020, covered employers must provide the required training to each employee in California once every two years.
The new law specifies that an employer who has provided the training to an employee after January 1, 2019 is not required to provide training again by the January 1, 2020 deadline. The new law also provides that the training may be completed by employees individually or as part of a group presentation, and may even be completed in shorter segments as long as the total hourly requirement is met.
Special Rules For Seasonal and Temporary Employees
SB 1343 has some special provisions that apply to seasonal and temporary employers and employees. Beginning January 1, 2020 seasonal and temporary employees, or any employee that is hired to work for less than six months, shall be provided the required training within 30 calendar days after the date of hire, or within 100 hours worked, whichever occurs first.
In the case of a temporary employee employed by a temporary services provider to perform services for clients, SB 1343 specifies that the training shall be provided by the temporary services employer, not the client.
Department of Fair Employment & Housing Obligations
The Department of Fair Employment and Housing (DFEH) is required to implement a method for employees who have completed the training to electronically save and print a certificate of completion.
The new law also requires the DFEH to develop or obtain on-line training courses —a two-hour course for supervisory employees and a one-hour course for non-supervisory employees. These on-line programs are to be made available on the DFEH website and shall contain an interactive feature that requires the viewer to respond periodically to questions in order to continue. In addition, DFEH is required to make the online training videos available in English, Spanish, Simplified Chinese, Tagalog, Vietnamese, Korean and any other language spoken by a “substantial number of non-English speaking people.”
Employers are not required to use the on-line DFEH training videos – an employer may develop its own training program or may direct employees to view the on-line DFEH training videos. While the on-line program is intended to be interactive, the bill provides that any questions resulting from the on-line training course shall be directed to the employer’s human resources department or equally qualified professional, not to the DFEH.
This legislation will result in a significant increase in the amount of time and expense an employer must expend to comply with the expanded prevention training requirements.
CALIFORNIA TAKES A “STAND” AGAINST SEXUAL HARASSMENT & DISCRIMINATION IN THE WORKPLACE
SB 820: Senator Connie Leyva (D-Chino)
This bill expands the category of settlement agreements in which non-disclosure provisions are prohibited in civil action and/or administrative actions. Specifically non-disclosure clauses in settlement agreements involving an act of workplace harassment or discrimination based on sex, or failure to prevent an act of such harassment or discrimination, or an act of retaliation against a person for reporting harassment or discrimination based on sex, are prohibited.
The legislation is known as the STAND (Stand Together Against Non-Disclosure) Act. This bill becomes effective January 1, 2019 so that any provision in any settlement agreement entered into on or after that date that violates the new prohibitions will be deemed to be null and void as against public policy. (The law will not impact settlement agreements entered into prior to January 1, 2019).
Interestingly, the prohibition contained in the new law only applies to “claims filed in a civil action or a complaint filed in an administrative action.” The new law appears to not prohibit such non-disclosure clauses being used in settlements that occur in the “pre-litigation” phase (such as where a demand letter has been sent but no claim has been filed with an administrative agency or in court). With this exclusion, there may be a narrow set of circumstances in which such clauses may still be utilized in sexual harassment and other similar cases.
Settlement Agreements Can Still Prohibit Disclosure of the Settlement Amount
It is commonplace in most settlement agreements to provide that the amount of the settlement is subject to a non-disclosure agreement. The STAND Act specifically provides that it does not prohibit the enforcement of a provision in a settlement agreement that “precludes the disclosure of the amount paid in settlement of a claim.”
RESTRICTIONS ON NON-DISPARAGEMENT PROVISIONS AND EXPANDED EMPLOYER OBLIGATIONS
SB 1300 Senator Hannah-Beth Jackson (D-Santa Barbara)
This bill entitled “Unlawful employment practices: discrimination and harassment”, includes restrictions and imposes obligations on employers relating to sexual harassment issues in the workplace.
Restrictions on Employer Releases and Non-Disparagement Agreements
The bill makes it an unlawful employment practice under the California Government Code for an employer, in exchange for a raise or bonus or as a condition of employment or continued employment, to do the following:
- Require an employee to sign a release stating the employee does not possess any claim or injury against the employer or other covered entity, and include in the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, law enforcement agency, court, or other governmental entity; or
- Require an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
However, these provisions do not apply to negotiated settlement agreements to resolve an underlying claim in court, before an administrative agency or alternative dispute resolution forum, or through an employer’s internal complaint process.
Employer Responsibility for Non-employees
Currently under FEHA an employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees and other specified persons, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. This bill provides that an employer may now be responsible for the acts of non-employees with respect to harassment activity other than sexual harassment.
In addition under FEHA, an employer may be responsible for the acts of non-employees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. This bill would make the above provision apply with respect to any type of harassment prohibited under FEHA of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace.
Changes to Sexual Harassment Litigation – Plaintiff Need Not Prove Decline in Productivity Resulting from Harassment
One of the key components in this bill is that it formally adopts the long established federal standard, that a sexual harassment plaintiff “need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.”
Single Incident Now Sufficient for Hostile Work Environment Claim
SB 1300 expressly provides that a “single incident of harassment is sufficient to create a triable issue of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”
The statute further affirms a recent California Supreme Court’s decision, which found isolated remarks, if viewed in light of other circumstances, can be evidence of severe and pervasive harassing conduct.
Attorney Fees & Costs Not Awarded to A Prevailing Defendant
The bill also provides that a prevailing defendant is prohibited from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so.
Employers may, but are not obligated to, provide employees with “bystander intervention training” that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe such behaviors. The training and education may include exercises to provide bystanders with the skills and confidence to intervene as appropriate. Such exercises also may provide bystanders with resources they can call upon that support their intervention. Bystanders would be co-workers who observe acts of harassment in the workplace.
What Should I Do Now?
- Review and update your prevention training program to include non-supervisory employees, bystander training and training on non-employee conduct.
- Modify any settlement agreements which release any claims post January 1, 2018 alleging sexual harassment or discrimination in the workplace to ensure they do not:
• include provision preventing employees from disclosing factual information about claims of sexual assault, sexual harassment, sex discrimination, or related retaliation claims;
• require an employee to waive his right to testify at an administrative, legislative, or judicial proceeding about criminal conduct or sexual harassment;
• require, as a condition for a raise or bonus or for employment or continued employment, that employees release claims or agree not to disclose information about sexual harassment or other unlawful acts.