New Workplace Harassment Laws Take Affect January 1, 2019

Governor Brown has signed the following four important pieces of legislation that significantly change and strengthen policies prohibiting workplace harassment. These laws become effective on January 1, 2019.

It is critically important that your HR team understand these new laws and update current policies and procedures and pertinent documents to ensure your company’s compliance.

NEW LAW: SB 1300
“Severe or pervasive” – no longer standard for proof of harassment.

You’re probably familiar with FEHA – California Fair Employment and Housing Act. FEHA prohibits employer harassment of an employee or other specified person, and makes the employer liable for harassment of an employee by a non-supervisory co-worker if the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action.

SB 1300 extends FEHA in the following ways:

(1) Employers will now be liable for harassment by non-employees. In essence, the new law prohibits all third-party harassment. You must be mindful of other personnel who interact with your employees such as contractors and vendors.
(2) The new law pointedly rejects the previous standard of “severe or pervasive” for proving sexual harassment. This new provision could enable an employee claiming a hostile work environment to proceed to trial based on a single occurrence of harassing conduct if the conduct interfered with the employee’s work performance or creates an intimidating, hostile, or offensive working environment. Additionally, SB-1300 specifically asserts that harassment cases are unlikely to be dismissed by the court (summary judgment).
(3) SB 1300 prohibits employers from requiring employees to release claims under FEHA when considering a salary increase or as a condition of employment.
(4) The new law also prohibits employers from requiring that employees execute any document (including settlement agreements) preventing them from disclosing information regarding unlawful workplace acts.

NEW LAW: SB 1343
Requires sexual harassment training for companies with five (5) or more employees.

This new law is a significant change from existing law which pertains to companies with 50 or more employees. SB 1343 requires employers with just five (5) or more employees, including temporary and seasonal workers, to provide a minimum of two (2) hours of sexual harassment training to all supervisors. For temporary and seasonal employees, employers must provide training within 30 calendar days after the hiring or within 100 hours worked if the employee will work for less than six months.

Additionally, by January 1, 2020, SB 1343 requires employers to provide at least one hour of sexual harassment training to all non-supervisory personnel within six months of assumption of their position. This training must be repeated at least once every two (2) years.

Bans confidentiality agreements and secret settlements in sexual harassment cases.

SB 820 is also known as the STAND Act (Stand Together Against Non-Disclosures) and bans settlement agreements in cases involving workplace sexual misconduct and/or sexual assault. This new law prohibits confidential provisions in settlement agreements that are designed to prevent disclosure of claims of sexual assault, sexual harassment, and harassment or discrimination based on gender that are filed in a civil or administrative action. Such agreements and settlements are now considered void as a matter or law and against public policy except in those cases when included at the request of the employee.

Employers should remove confidentiality language in their settlement agreements for claims of sexual harassment, sexual assault, sexual discrimination, and sexual misconduct where such language prevents the disclosure of factual information related to those claims.

NEW LAW: AB 3109
Prohibits employers from requiring employees to waive their right to testify.

AB 3109 bans contractual provisions that waive employees’ rights to testify in an administrative or legal proceeding regarding alleged criminal conduct or sexual harassment. This new bill reminds us that all Californians have a constitutional right to petition our state government for redress of grievances and to freely assemble, speak, write, and publish those sentiments with respect to the abuse of this right. Therefore, any provision that contains such a waiver would be void and unenforceable.

We’re here to help. Backstrom Labor Law is ready to assist you in understanding and complying with this new set of workplace harassment laws. All Employee Handbooks, release forms, non-disclosure agreements, settlement agreements, waivers, and anti-harassment training programs should undergo review and probable changes before the new laws take affect.

Please feel free to call our office if you have any questions. Please let us know if you would like the full text of the legislation.