On September 30, 2018, three separate bills were signed into law by California Governor Jerry Brown to help combat sexual harassment in the workplace. A summary of the bills are as follows:
Bill 820 – Settlement Agreements/Confidentiality.
Bill 820 makes any provision within a settlement agreement entered into on or after January 1, 2019, that prevents the disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action, strictly prohibited if the settlement agreement relates to any of the following:
- An act of sexual assault;
- An act of sexual harassment;
- Workplace sexual harassment or discrimination;
- The failure to prevent acts of workplace sexual harassment or sex discrimination; or
- Retaliation against a person for reporting sexual harassment or sex discrimination.
The bill bans a court from entering, by stipulation or otherwise, an order that restricts the disclosure of information. A provision that shields the identity of the victim can be allowed if requested by the victim (though this provision will not be allowed if a government agency or public official is a party to the agreement).
Bill 1300 – Contractors/Non-employees.
Bill 1300 expands an employer’s potential liability under the Fair Employment and Housing Act (FEHA) for acts of non-employees to include all forms of unlawful harassment (not just “sexual” harassment). In other words, an employer may be responsible for the acts of non-employees, with respect to any type of unlawful harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer knows (or should have known) of the conduct and fails to take immediate and appropriate corrective action. Further, the bill prohibits employers from requiring an employee to sign a release of claims or rights or anything prohibiting disclosure of information about unlawful acts in the workplace as a condition of employment (or as a condition of receiving a raise or bonus).
Bill 1343 – Sexual Harassment Training.
Currently, FEHA requires employers with 50 or more employees to provide at least 2 hours of prescribed training regarding sexual harassment to all supervisory employees within 6 months of hire and once every 2 years.
Bill 1343 expands on the current law to require any employer who employs 5 or more employees to provide at least 2 hours of interactive sexual harassment training to all supervisory employees and at least one hour of interactive sexual harassment training to all nonsupervisory employees on or before January 1, 2020, and once every 2 years thereafter. On or after January 1, 2020, employees must complete the training within 6 months of assuming their position. In addition, beginning January 1, 2020, seasonal and temporary employees (or any employee hired to work for less than six months), shall also complete sexual harassment training within 30 calendar days after date of hire, or within 100 hours worked, whichever occurs first. FEHA is set to develop a compliance poster, fact sheet, and 1-hour and 2-hour online training courses. Everything will be posted to the department’s website for use by employers.
Employer Action Items:
- Review current policies as they relate to non-disclosure agreements and amend as needed.
- Be aware of potential liability for acts of certain non-employees as it relates to unlawful harassment and speak with employment law counsel, as needed.
- Prepare to provide sexual harassment training as prescribed under the new law on or before January 1, 2020.
- Provide the new sexual harassment written fact sheet to employees and post the compliance poster when they become available on the FEHA website.
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