United States: California Enacts A Package Of Legislation Aimed To Prevent Sexual Harassment In The Workplace

In the wake of the #MeToo and #TimesUp movement and corresponding flood of sexual misconduct claims, California Governor Jerry Brown signed a series of bills into law, all which are aimed at preventing sexual harassment in the workplace, empowering victims of sexual misconduct, and reducing the chilling effect on raising, discussing, or disclosing instances of sexual harassment. The following bills will go into effect on January 1, 2019.

Assembly Bill 2770 (AB 2770)

Assembly Bill 2770 expands qualified privilege to communications pertaining to sexual harassment. Under the existing law, employers only enjoy qualified privilege of communications pertaining to a former or current employee's job performance or qualifications, with no specific protection for communications relating to sexual harassment complaints. Due to the threat of a potential defamation claim, the statute's lack of explicit protection for sexual harassment communications produced a chilling effect on both employees and employers in coming forward with complaints of sexual harassment or disclosing sexual harassment to prospective employers. 

AB 2770 expands the qualified privilege under Civil Code section 47(c) to communications relating to sexual harassment in the workplace, including:

  1. Complaints of sexual harassment made by an employee to an employer;
  2. Communications by employers to potential employers regarding complaints of sexual harassment; and
  3. An employer's answer to an inquiry about whether it would rehire a current or former employee based on a determination that the employee engaged in sexual harassment.

In order for the qualified privilege to extend, such comments pertaining to the sexual harassment must be made "without malice" and based on credible evidence. 

It is important to note that AB 2770 does not prohibit defamation lawsuits by accused harassers. Instead, AB 2770 imposes a heightened standard of malice that an accused harasser must overcome to defeat the qualified privileged of sexual harassment complaints or communications, which is expected to deter accused harassers from bringing frivolous or retaliatory defamation claims in response to complaints or disclosures of sexual harassment.

Assembly Bill 1619 (AB 1619)

Assembly Bill 1619 amends Code of Civil Procedure section 340.16 by extending the statute of limitations on civil claims for sexual assault from three to ten years. For instances of sexual assault that occurred on or after the victim's eighteenth birthday, the statute of limitations will now be the later of either (1) ten years from the date of the last act, attempted act, or assault with intent to commit an act of sexual assault, or (2) within three years from the date the victim discovers or reasonably should have discovered injury or illness as a result of the sexual assault.

Senate Bill 820 (SB 820)

Senate Bill 820 prohibits confidential settlements or non-disclosure agreements involving cases of sexual harassment, assault or discrimination. SB 820 allows provisions protecting the victim's identity, and notably does not ban confidentiality of the settlement payment amount. 

Senate Bill 1300 (SB 1300)

Senate Bill 1300 imposes various restrictions on employers with respect to employee discussion or disclosure of unlawful conduct, including sexual harassment. 

Currently under California's Fair Employment and Housing Act ("FEHA"), an employer may be liable for sexual harassment by nonemployees. However, SB 1300 expands employer liability for all acts of harassment by nonemployees. SB 1300 also authorizes employers to provide bystander intervention training to encourage employees to recognize and take action in response to potentially harassing behavior. 

Of significance, SB 1300 prohibits employers from requiring an employee to execute (1) a release of any claims under the FEHA, or (2) a non-disparagement agreement that restricts the employee's right to disclose information about unlawful acts in the workplace, such as sexual harassment, as a condition to continued employment or in exchange for a bonus or promotion. Notably, these restrictions do not apply to negotiated settlement agreements resolving any underlying civil, internal, or administrative agency claim so long as the agreement is voluntary, entails valuable consideration, and affords the employee the opportunity to retain an attorney. 

SB 1300 also imposes a heightened standard for an employer defendant's recovery of attorneys' fees and costs in a civil action. While the FEHA currently allows for an award of fees and costs to any prevailing party, SB 1300 specifically prohibits a prevailing defendant from recovering fees and costs unless a court finds that the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so.

Senate Bill 1343 (SB 1343)

Senate Bill 1343 amends Government Code section 12950.1 by vastly expanding sexual harassment training requirements to nearly all California employers with five employees or more. California employers subject to SB 1343 must provide at least two hours of sexual harassment prevention training to supervisory employees, and at least one hour of sexual harassment training to nonsupervisory employees. Previously, California's harassment training requirement only required employers with 50 or more employees to provide training, and such training was limited to supervisory personnel only. Employers covered under SB 1343 must implement the first round of harassment prevention training by January 1, 2020, with repeat training every two years.

Practical Considerations

It is imperative that employers develop a comprehensive understanding of these impending legislative changes to ensure proper compliance. Your Lewis Brisbois employment attorney is available to answer any questions and can assist with evaluating and updating your current policies and procedures to comply with these key developments. Read more about our Labor & Employment team here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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