#TakeTheLead: California Employment Laws Boldly Go Where No Legislation Has Gone Before

Emily K. Borman

Unless you’ve been living under the Starship Enterprise, you’ve seen the laundry list of new laws recently passed by the California legislature, which went into effect this year. If you do business in the Golden State, you need a clear and concise understanding of what these new laws mean to your business. To assist, we’re rolling out a series of blog posts to spotlight some of the most far-reaching and significant California legislation to date.

Today, our focus is on #MeToo-inspired legislation, as we examine California’s newest sexual harassment laws and how they affect your business.

Now that we’ve got your attention…Warp Speed Ahead!

The hashtag phrase “#TakeTheLead” has emerged as a symbol reflecting California’s position at the forefront of cutting edge legislation focused on increasing protection for women—and workers, generally—in the wake of the #MeToo movement. These new laws aim to prevent sexual harassment by lowering the plaintiff’s burden in harassment lawsuits, increasing training requirements for employers, and making it more difficult to enter into releases and non-disclosure agreements with employees. This legislation points to a new “normal” in the workplace that is hyper-focused on the issue of sexual misconduct.

While the future effects (and effectiveness) of these new laws remain to be seen, one thing is certain: California employers will have to boldly go where no employer has gone before. In light of this uncertainty, it is important for California employers to take affirmative steps to protect themselves from liability in 2019 and beyond.

AB 3109 (Right to Testify Regarding Sexual Harassment): This law renders void and unenforceable any provision in a contract or settlement agreement that prevents a party to the contract or agreement from testifying about criminal conduct or sexual harassment in an administrative, legislative, or judicial proceeding.

Takeaway: When settling sexual harassment claims, before or after litigation, be wary of including boilerplate confidentiality provisions in settlement agreements. Make sure to have your trusted employment counsel review any confidentiality language to ensure compliance with AB 3109.

SB 224 (Expands Types of Relationships Subject to Sexual Harassment Claims): This new law amends Section 51.9 of the Civil Code by expanding the types of relationships subject to sexual harassment claims to include lobbyists, elected officials, directors, producers, and investors. Generally, SB 224 applies to work relationships where one person holds him/herself out as being able to help someone establish a business or professional relationship directly or with a third party.

Takeaway: This law highlights the legislature’s new focus on preventing harassment in powerful industries like politics and entertainment. The new law specifically identifies lobbyists, government officials, directors, producers, and investors as potential defendants in these suits. Given the harassment scandals that have rocked the entertainment industry in California, employers and all the specifically identified individuals in these industries should pay close attention to this new law and seek the advice of competent employment counsel to avoid running afoul of its provisions.

SB 820 (Prohibits Provisions Forbidding Disclosure of Sexual Harassment Claims): This new law prohibits settlement agreement provisions entered into after January 1, 2019, that prevent the disclosure of factual information relating to claims of sexual assault, sexual harassment, gender discrimination, or related retaliation, which have been filed in court or before an administrative agency. Notably, SB 820 does not prohibit agreement provisions disclosing the amount of the settlement. However, the law allows a claimant to request that his/her identity not be disclosed. The ban imposed by SB 820 applies only when there is a pending civil or administrative action that is resolved. Accordingly, the ban does not apply to pre-litigation settlement agreements.

Takeaway: Effective this year, broad non-disclosure clauses in these types of settlement agreements will be found void and in violation of public policy. It is important to remember, however, that the law does not prohibit non-disclosure language in its settlement agreements to resolve pre-litigation claims. Your favorite Blank Rome attorney can assist you in making sure your settlement agreements are in compliance with this legislation.

SB 1343 (Expands Sexual Harassment Training Requirements): Under existing law, California requires employers with 50 or more employees to provide supervisors with two hours of sexual harassment training within six months of assuming a supervisory role or every two years. In 2017, California expanded the scope of required harassment training to include coverage of harassment based on gender identity, gender expression and sexual orientation. SB 1343 significantly expands the breadth of who must receive this training to include employers with five or more employees and requires that employers provide at least two hours of training to supervisory employees and at least one hour of training to non-supervisory employees by January 1, 2020, and once every two years thereafter. Training of non-supervisory employees is a first in California, and now it appears that even temporary or seasonal workers are required to receive this training.

Takeaway: Competent and effective sexual (and general) harassment training is now more important than ever. To assure compliance by the deadlines, you should take steps now to (1) schedule and provide effective training to your employees, and (2) implement a regular schedule of training moving forward. As you contemplate these new requirements, be sure to incorporate truly effective and interactive training, as we all know that standard “check the box” training is not nearly as effective in preventing workplace harassment. With this new law, now is the time to re-evaluate your training practices.

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