With #MeToo hitting Hollywood and politicians, California legislators continue to consider wide ranging anti-sexual harassment laws. The Senate and Assembly had until June 1, 2018, to pass bills introduced in their respective houses to the other house. Here are some of the bills addressing sexual harassment that made the cut and that may ultimately become law:
AB 1761: This bill would require panic buttons for hotel workers that work alone in guest rooms to be used if the worker believes there is an ongoing crime, harassment, or other emergency that happens in their presence. The bill also requires a notice on the door of each room informing guests of the panic button. Violations of the law, as presently drafted, could result in a $100/day penalty, up to a $1,000, for each violation of its provisions.
AB 1867: AB 1867 would require employers with 50 or more employees to retain records of all internal employment sexual harassment complaints for ten years and gives the Department of Fair Housing and Employment (DFEH) the ability to compel employer compliance.
SB 224: This bill extends liability for sexual harassment claims where a professional relationship exists between the complainant and an elected official, lobbyist, director or producer. The proposed law is a direct reaction to #MeToo scandals.
SB 1300: This bill would define the elements a complainant must prove if the complainant’s discrimination and harassment claim is that the employer failed to take all reasonable steps necessary to prevent discrimination and harassment. Under the proposed law the complainant would be required to prove (1) the employer new the conduct was unwelcome; (2) the conduct would meet the legal standard for harassment or discrimination if it increased in severity or became pervasive; and (3) the employer failed to take all reasonable steps to prevent the same or similar conduct from recurring. The Senate Bill would also prohibit employers from requiring a release of claims or rights under Fair Employment and Housing Act (FEHA), or a nondisclosure agreement or other agreement not to disclose unlawful acts in the workplace, in exchange for a raise or a bonus or as a condition of employment or continued employment. In addition, employers with five or more employees would have to provide two hours of sexual harassment prevention training, including bystander intervention training, within six months of hire and every two years thereafter to all California employees—not just supervisors. Finally, the proposal would prohibit a prevailing defendant from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or totally without foundation when brought or that the plaintiff continued to litigate after it clearly became so.
AB 1870: This bill extends the time an employee has to file an administrative charge with the DFEH alleging an unlawful practice under the FEHA, including allegations of sexual harassment, from one year to three years from the alleged violation.
AB 3081: This bill extends Labor Code prohibitions on discrimination against employees who are victims of domestic violence, sexual assault, or stalking to include employees who are victims of sexual harassment, as well as employees who take time off to assist a family member who is a victim of domestic violence, sexual assault, sexual harassment or stalking; creates a rebuttable presumption of unlawful retaliation against an employee if any adverse job action occurs within 90 days of reporting sexual harassment, participating in an investigation, or similar acts; increases the time an employee has to file a complaint with the Department of Labor Standards Enforcement (DLSE) for violation of Labor Code section 230 (provides protected time off for jury duty
and victims) from one year to three years; requires employers, at the time of hiring and regularly on an annual basis thereafter, to provide to each employee a written notice that includes prescribed information about sexual harassment; and requires employers with 25 or more employees to provide sexual harassment prevention training to all nonsupervisory employees at the time of hire and once every two years thereafter. The bill also requires the Labor Commissioner to create a means for employees to report sexual harassment or assault that occurs in the workplace.
SB 1038: This Senate Bill would make an employee who intentionally retaliates against a person who has filed a complaint, testified, assisted in any proceeding, or opposed any prohibited practice, under FEHA, jointly and severally liable, regardless of whether the employer knew or should have known of that employee’s retaliatory conduct.
AB 2770 would include as “privileged” communications for: (1) complaints of sexual harassment made without malice by an employee to an employer based upon credible evidence; (2) communications between the employer and “interested persons” made without malice regarding the complaint; and (3) non-malicious statements made to prospective employers as to whether a decision to not rehire would be based on a determination that the former employee had engaged in sexual harassment.
SB 820:, Known as the “Stand Together Against Non-Disclosure” (STAND) Act, this proposal would make void as a matter of law and public policy provisions in settlement agreements, entered into on or after January 1, 2019, that prevent the disclosure of factual information related to cases involving sexual assault, sexual harassment, sex discrimination, and failure to prevent sex-based harassment and discrimination. The bill would, however, allow such a confidentiality provision to be included upon the request of the claimant unless the opposing party is a government agency or public official; and would allow a provision requiring the monetary settlement payment be kept confidential.
AB 3109: This Assembly Bill would make void and unenforceable a provision in a contract or settlement agreement, entered into on or after January 1, 2019 that: either (1) waives a party’s right to testify regarding an alleged criminal conduct or
sexual harassment by the other party to the contract or agreement in an administrative, legislative, or judicial proceeding; or (2) substantially restrains a party’s right to seek employment or reemployment in any lawful occupation or industry, unless the other party to the contract or agreement is the current or prior employer (except for public employers and a private employer that “so dominates the labor market” so as to effectively restrict the employee from being able to secure employment).
Sexual harassment in the workplace has become a major topic and is ripe for broad legislation. If you are an employer and do not have proper anti-sexual harassment policies and procedures in place, have not had a legal review of them in the past six months, or have not been proactive in preventing such complaints, it is time to consult with legal counsel. Employers must get on board now or face potentially strict and broad liability and penalties for non-compliance.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
