New California Employment Laws in Response to #MeToo Movement.

By: Kyle D. Kring  

Last weekend, California Governor Jerry Brown signed many significant pieces of legislation related to the recent #MeToo movement. The majority of the laws will take effect on January 1, 2019 and will undoubtedly have a large impact on employees and employers alike. The #MeToo movement, which spread virally in the Fall of 2017, is aimed at combatting sexual harassment and sexual assault. Its effects have had an immense influence on the employment sector, leading to a push for increased employment legislation.

Employees and employers should be aware of the bills Governor Brown signed and those he vetoed, as they are sure to have a profound impact on the employment sector. The major bills are discussed below, with a brief summary of each.

Bills Signed

SB 224: SB 224 expands the list of those who face liability for sexual harassment in certain business, service, or professional relationships. While existing law includes the attorney-client and doctor-patient relationship, this bill adds investor, elected official, lobbyist, director, and producer. The full text of SB 224 may be viewed here.

SB 820: Governor Brown signed SB 820, which prohibits non-disclosure clauses in settlement agreements involving factual information related to certain claims of sexual harassment and sexual assault filed in civil court or with an administrative agency. It is important to note that this bill encompasses more than just sexual harassment; it prohibits non-disclosure agreements in failure to prevent for reporting sexual harassment and discrimination and retaliation cases as well. This bill does not apply to settlements of claims not in litigation. The full text of SB 820 may be viewed here.

SB 826: This bill requires publicly held companies to have at least one female on their boards of directors by the end of 2019. The number of woman on each board must then increase again by 2021. The full text of SB 826 may be viewed here.

SB 1300: SB 1300 is undoubtedly one of the most comprehensive #MeToo bills introduced by the Senate and signed by Governor Brown. This bill prohibits employers from requiring workers to agree to non-disparagement clauses as a term of employment or continued employment or in exchange for a raise or bonus under the Fair Employment and Housing Act (FEHA). While FEHA currently holds liable an employer who knew or should have known of acts of non-employees with respect to sexual harassment of employees, this bill will expand an employer's potential liability for any harassment prohibited under FEHA. FEHA currently gives courts discretion to award a prevailing party attorney's fees and costs in civil actions. SB 1300 provides that "a prevailing defendant is prohibited from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so." This bill will also establish that a single incident of harassment is sufficient to create a triable issue of whether one was subject to a hostile work environment. The full text of SB 1300 may be viewed here.

SB 1343: This bill increases requirements for employers to provide sexual harassment training to employees. Currently, FEHA requires employers with 50 or more employees to provide at least two (2) hours of "sexual harassment, abusive conduct, and harassment based upon gender" training to supervisory employees every two years. SB 1343 greatly expands that requirement, mandating that any employer with 5 or more employees provide sexual harassment training to all non-supervisory employees by January 1, 2020 and once every two years following. The full text of SB 1343 may be viewed here.

AB 1976: Effective January 1, 2019, this bill changes the requirements for current lactation accommodation law. Specifically, it requires an employer to make "reasonable efforts" to provide an employee with a location, other than a bathroom, to use for lactation purposes. The bill permits employers to establish "temporary locations" to be used solely for lactation purposes. Further, if an employer demonstrates an undue hardship, the bill requires them to make a reasonable effort to provide a space other than a toilet stall. The full text of AB 1976 may be viewed here.

AB 3109: This bill simply states that "a provision in a contract or settlement agreement entered into on or after January 1, 2019, that waives a party's right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment. . ." is void and unenforceable. The full text of AB 3109 may be viewed here.

Bills Vetoed

AB 1867: Governor Brown vetoed this bill requiring employers with 50 or more employees to maintain records of sexual harassment complaints for at least 5 years after the last day of the complainant or alleged harasser's employment. In Governor Brown's veto message, he stated that this record retention requirement would be "unwarranted" due to the current record retention laws. The full text of AB 1867 may be viewed here. The full text of Governor Brown's veto message may be viewed here.

AB 1870: This bill would have extended the deadline to file a Department of Fair Employment and Housing (DFEH) complaint from one to three years. In Governor Brown's veto message, he stated that the current one-year deadline "not only encourages prompt resolution while memories and evidence are fresh, but also ensures that unwelcome behavior is promptly reported and halted." The full text of AB 1870 may be viewed here. The full text of Governor Brown's veto message may be viewed here.

AB 3080: This bill would have prohibited employers from requiring any potential employee to sign an arbitration agreement as a condition of employment. In vetoing the bill, Governor Brown reasoned that the U.S. Supreme Court made clear that states must follow the Federal Arbitration Act (FAA). Further, he reasoned that the Supreme Court has clearly indicated its intention for the FAA to apply to contract formation issues as well. The full text of AB 3080 may be viewed here. The full text of Governor Brown's veto message may be viewed here.

AB 3081: Governor Brown returned this bill without his signature, stating that it created a "new, ill-defined standard of joint liability between labor contractors and client employers. . ." Brown also mentioned that many of the provisions are already contained in current law. The full text of AB 3081 may be viewed here. The full text of Governor Brown's veto message may be viewed here.

The #MeToo movement has resulted in several important bills which effect the employment sector on a large scale. Both employees and employers in the state of California should be well aware of these bills, as failure to adhere to them may lead to significant liability.

For more information on this topic or for other employment-related questions, contact an employment lawyer at Kring & Chung, LLP.

Kyle D. Kring is a Partner of Kring & Chung, LLP. He can be reached at (949) 261-7700 or via email at kkring@kringandchung.com. Tyler Kring is a law clerk of Kring & Chung, LLP. He can be reached at tkring@kringandchung.com.

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