Five New Laws that Reflect the ‘Me Too Movement'

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Tom Wolfe, Managing Partner of Moore Brewer Wolfe Jones Tyler & North.

Consistent with the 'Me Too Movement', several new laws will take effect in 2019 designed to better protect the rights of victims of alleged sexual harassment and improve protections in the workplace overall.

SB 820 (Leyva): Confidentiality Clauses in Settlement Agreements
SB 820 adds new Code of Civil Procedure §1001, which prohibits a settlement agreement entered into on or after January 1, 2019 from including a confidentiality provision that would prevent the disclosure of factual information related to a claim where any of the following have been alleged: sexual assault; sexual harassment; workplace harassment or discrimination based on sex; failure to prevent an act of workplace harassment or discrimination based on sex; or retaliation against a person for reporting harassment or discrimination based on sex.

This prohibition applies to both civil actions and administrative actions. Additionally, a court is prohibited from entering an order in a civil action, by stipulation or otherwise, that would prevent such disclosure.

  • Notwithstanding, at a claimant’s request, a settlement agreement may include a provision that shields the claimant’s identity and all facts that could lead to the discovery of his or her identity, including pleadings filed in court. This option does not apply if a government agency or public official is a party.
  • This section does not prohibit the entry or enforcement of a provision that precludes the disclosure of the amount paid in settlement of a claim.

Any provision in a settlement agreement entered into on or after January 1, 2019 in violation of this section is against public policy and void as a matter of law.

AB 3109 (Mark Stone): Waiver of Right to Testify
AB 3109 adds new Civil Code §1670.11, which provides that any provision in a contract or settlement agreement entered into on or after January 1, 2019 is void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding about the other party’s alleged criminal conduct or sexual harassment. This provision is limited to when a party has been required or requested to testify pursuant to a court order, subpoena, or written request from an administrative agency or the legislature.

AB 2770 (Irwin): Defamation Protection for Harassment Claims
Civil Code §47 identifies certain communications that are considered privileged and therefore not subject to defamation claims. Privileged communications currently include:

  • Communications made by a current or former employer (or the employer’s agent) upon request to a prospective employer concerning an employee’s job performance or qualifications, based upon credible evidence and without malice.

The current or former employer (or the employer’s agent) is authorized to answer, without malice, whether or not they would rehire the employee.

Effective Jan. 1, 2019, AB 2770 codifies defamation case law to make explicit that privileged communications would also include:

  • A complaint of sexual harassment made by an employee, without malice, to an employer based upon credible evidence; and
  • Communications between the employer and interested persons, made without malice, regarding a complaint of sexual harassment

The current or former employer (or the employer’s agent) is authorized to answer, without malice, whether or not they would rehire the employee and whether the decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment.

SB 1300 (Jackson): Workplace Harassment Claims
SB 1300 makes various changes:

1) Under the Fair Employment and Housing Act (“FEHA”), employers may be responsible for sexual harassment of employees, applicants, unpaid interns and volunteers committed by nonemployees, if the employer knew or should have known of the wrongful conduct and failed to take immediate and appropriate corrective action. Effective January 1, 2019, SB 1300 removes the term “sexual,” making employers potentially liable for any type of harassment prohibited under the FEHA.

2) SB 1300 provides that an employer may, but is not required to, provide bystander intervention training on how to enable bystanders to recognize potentially problematic behaviors and motivate bystanders to take action when they observe problematic behaviors.

3) SB 1300 makes it an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to: (a) require an employee to sign a release of a claim or right under FEHA; or (b) require an employee to sign a nondisparagement 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.

Any agreement or document that violates these prohibitions is contrary to public policy and unenforceable. However, these prohibitions do not apply to a negotiated settlement agreement to resolve a claim filed by an employee with any court, administrative agency, alternative dispute resolution forum, or through an employer’s internal complaint process.

4) SB 1300 also includes several legislative findings and declarations, affirming and rejecting the holdings in various cases:

  • Affirms the standard in Harris v. Forklift Systems,[1] finding that a plaintiff in a workplace harassment suit need only 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.
  • Rejects Brooks v. City of San Mateo,[2] instead finding that a single incident of harassing conduct may be sufficient to create a triable issue regarding the existence of a hostile work environment.
  • Affirms Reid v. Google, Inc.,[3] finding that the existence of a hostile work environment depends upon the totality of the circumstances and that a discriminatory remark may be relevant, circumstantial evidence of discrimination.
  • Rejects anything in Kelley v. Conco Companies[4] that doesn’t support the Legislature’s finding that the legal standard for sexual harassment should not vary by type of workplace.
  • Affirms Nazir v. United Airlines, Inc.,[5] finding that harassment cases are rarely appropriate for summary judgment.

SB 1343 (Mitchell): Sexual Harassment Training
Under existing law, employers with 50 or more employees are required to provide 2 hours of sexual harassment training to all supervisory employees in California within 6 months of hire or promotion, and every 2 years thereafter.

Effective Jan. 1, 2019, SB 1343 extends this requirement to employers with 5 or more employees, with training to be completed by January 1, 2020.

In addition, employers with 5 or more employees will now be required to provide 1 hour of sexual harassment training to all nonsupervisory employees within 6 months of hire, and every 2 years thereafter.

The Department of Fair Employment and Housing (“DFEH”) is required to develop or obtain 2 online training courses: a 1-hour course for nonsupervisory employees and a 2-hour course for supervisory employees. The courses shall be made available on its website and shall 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. Any questions arising from the training shall be directed to the human resources department for the employer or an equally qualified professional. An employer may develop its own training module or utilize the DFEH online training.

In addition to its online training courses, the DFEH is required to make its informational posters and fact sheets regarding sexual harassment prevention available to employers and the public on its website, and make them available in various other languages as directed. The DFEH shall make versions of the online training courses with subtitles in each language and shall orally dub the online training courses into each of the other languages.

SB 1343 provides the following additional information regarding implementation of the new requirements:

  • An employer may provide this training individually or as a group, in conjunction with other training provided to employees, and/or in shorter segments, as long as total hourly requirement is met.
  • Beginning January 1, 2020, temporary and seasonal employees (and any employee hired to work less than 6 months) must be trained within 30 days of hire or 100 hours worked, whichever occurs sooner. Temporary services employers will be responsible for training employees they place with clients.

Article by Tom Wolfe, Managing Partner of Moore Brewer Wolfe Jones Tyler & North.

[1] Harris v. Forklift Systems (1993) 510 U.S. 17.

[2] Brooks v. City of San Mateo (2000) 229 F.3d 917.

[3] Reid v. Google, Inc. (2010) 50 Cal.4th 512.

[4] Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.

[5] Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243.

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