In what should not come as a surprise to anyone, the California Legislature has proposed several new employment laws this year aimed at preventing sexual harassment seemingly in response to the #MeToo movement. Although the Legislature is considering approximately 20 such bills, certain pending legislation in particular, would present some of the biggest changes to existing law and employers’ policies and practices if passed. This pending legislation is summarized below.
SB 820 would prohibit confidentiality provisions in settlement agreements that prevent the disclosure of factual information relating to claims of workplace harassment based on sex, sex discrimination, or failure to prevent such harassment and discrimination, among others. However, such provisions could be included at a claimant’s request. SB 820 would apply to agreements entered into after January 1, 2019.
Similarly, AB 3080 would prohibit confidentiality provisions in settlement agreements or as a condition of employment that prevent an employee or independent contractor from disclosing facts regarding an instance of sexual harassment suffered, witnessed, or discovered in the workplace. In addition, AB 3080 would prohibit employers from requiring employees or applicants to sign mandatory arbitration agreements for claims alleging violations of California’s Fair Employment and Housing Act (“FEHA”), including sexual harassment.
SB 1300 would also prohibit confidentiality provisions and non-disparagement provisions in agreements releasing FEHA claims. In addition, SB 1300 would require employers with five or more employees to provide sexual harassment training to all employees within six months of hire and once every two years (currently, only employers with fifty or more employees are required to provide training and only to supervisory personnel).
Next, AB 3081 would expand current law which prohibits an employer from discharging or discriminating or retaliating against an employee because of the employee’s status as a victim of domestic violence, sexual assault, or stalking. The proposed legislation would establish an additional protected status/group for those who are victims of sexual harassment. The bill would also establish a rebuttable presumption of unlawful retaliation if an employer denies, discharges, threatens to discharge, demotes, suspends, or discriminates against an employee within 90 days after the employee files a claim of sexual harassment.
Although not limited to sexual harassment claims, AB 1870 would extend the deadline from one year to three years for an employee to file a claim with the Department of Fair Employment and Housing for a violation of FEHA. This represents a significant increase in the statute of limitations for sexual harassment and other FEHA claims, as this administrative procedure must be exhausted before an employee may file a lawsuit against the employer.
While each of the bills currently being considered by the Legislature have not yet become law, it is clear that lawmakers intend to make significant changes in an effort to prevent sexual harassment in the workplace. Employers should proactively review their policies and procedures in anticipation of these changes and ensure they promptly and appropriately respond to any claims of sexual harassment.
Please contact the Employment Group at Klinedinst PC with any questions regarding the proposed legislation discussed above or for advice regarding any employment issues that may arise.
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