By: Philip A. Toomey, Esq.
In this session, the California Legislature sent to the Governor for approval 1,217 separate bills. The Governor had until September 30, 2018 to approve or veto the proposed legislation. By the close of Sunday evening on September 30, Governor Brown approved multiple employment-related legislative bills that, according to the Governor, are intended “to protect and support women, children and working families across California.” The Governor also vetoed numerous bills that would have had a direct impact on employers with California-based employees.
Significant Approved Legislation
Restriction on Nondisclosure Settlement Agreements
Perhaps one of the most significant bills approved was SB 820. Under this law, settlement agreements in lawsuits involving sexual harassment, assault, or discrimination may not include nondisclosure or confidentiality requirements, unless requested by the plaintiff. Settling employers may not require confidentiality or nondisclosure as a condition of settlement. This restriction extends to state administrative agency complaints (such as settlements obtained by mediation in charges filed by the Department of Fair Employment and Housing) and stipulated protective orders in pending lawsuits.
Lawsuits Permitted for Single Act of Harassment
Under existing law, in order for a plaintiff to prevail on a claim of harassment, the plaintiff must establish that the harassment was “severe or pervasive.” After January 1, 2018, under SB 1300 as approved by the Governor, a single act of harassing behavior is sufficient to violate state law.
Required Training of Employees and Expansion of Parties Liable for Harassment
Previously, employers with 50 or more California employees were required to require supervisors to complete 2 hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender within 6 months of assumption of a supervisory position and once every 2 years. Under SB 1343 as approved, employers with 5 or more employees, including temporary or seasonal employees, must provide at least 2 hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every 2 years thereafter.
Expanded Class of Persons Liable for Harassment
Existing California law permits a plaintiff to recover for harassing conduct when the harasser has a business, service, or professional relationship with the plaintiff and the plaintiff has an inability to easily terminate the relationship. Existing law states an attorney, holder of a master’s degree in social work, real estate agent, and real estate appraiser fall within such a group. Under approved SB 224, the group is expanded to include any person that holds themselves out as being able to help establish a business, service, or professional relationship with the defendant or a third party. SB 224 also eliminates that plaintiff prove there is an inability to easily terminate the relationship. SB 224 also expands the group who may be liable to include an investor, elected official, lobbyist, director, and producer.
Significant Vetoed Legislation
Arbitration As a Condition of Employment
In his message accompanying the veto of AB 1080, the Governor stated his belief the law’s intent, to prohibit arbitration as a condition of employment, would violate the Federal Arbitration Act (“FAA”). In May of 2018, in the combined cases of Epic Systems v. Lewis, 16-285, Ernst & Young v. Morris, 16-300, and NLRB v. Murphy Oil USA, 16-307, the United States Supreme Court held states could not adopt laws that impeded arbitration under the FAA.
Expanded Time Period Statute to Commence Harassment Claims
Under current law, victims of harassment, discrimination or retaliation have 1 year to file their claim with the Department of Fair Employment and Housing (“DFEH”). The filing of a claim with the DFEH is a prerequisite to commencing a lawsuit under the Fair Employment and Housing Act. The Governor vetoed AB 1870, which would have expanded the window to 3 years.
Maintenance of Records of Harassment
The Governor also vetoed AB 1867. Under the proposed law, employers with 50 or more California-based employees would have been required to maintain records of sexual harassment complaints for 5 years after termination of the alleged harasser. As noted in the Governor’s veto message, the bill would have possibly required retention of records for decades, even if the complaints were determined to be unfounded.
Joint Employer Liability for Harassment
Under existing law, “labor contractors” (such as employee leasing, temporary help and certain subcontractors) have joint and several liability for violation of wage and hours and workers compensation law. AB 3081 would have expanded the joint liability to retaliation and harassment claims. The Governor vetoed AB 3081.
Special Protection for Janitorial Workers
In the last Legislative session, California enacted the Property Service Worker Protection Act (“PSWPA”). The PSWPA grants to the Labor Commissioner authority to enact regulations designed to protect janitors and other custodial service workers. AB 2079 would have set new standards for sexual violence and harassment training. In his message, the Governor stated the Labor Commissioner has adequate authority to address the issues the bill was intending to reach.
Leech Tishman’s Employment Practice Group can help clients ensure compliance with California’s complex and technical employment laws and can assist clients with defending against civil or administrative actions.
If you have any questions regarding California’s unique employment laws or these employment law updates, please contact Philip Toomey. Phil serves as Leech Tishman’s West Coast Business & Employment Client Relations Partner and practices in the firm’sEmployment, Corporate, Litigation and Real Estate Practice Groups. Phil is based in the Leech Tishman’s El Segundo, CA office. He can be reached at 424.738.4400 or firstname.lastname@example.org.
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