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California Legislature Passes Assortment of Bills to Curb Sexual Harassment

September 17, 2018 Hilary Weddell

The #MeToo movement sent shockwaves through the hearts and minds of employers and employees alike last fall, and the California Legislature – known for introducing progressive legislation – jumped at the chance to address existing sexual harassment laws.  From increased training requirements to prohibitions on arbitration and confidentiality agreements, sexual harassment was at the forefront in Sacramento.  Nearly a dozen sexual harassment bills passed the Legislature and have landed on Governor Jerry Brown’s desk, and all would radically change employers’ current business practices.

Here is a sampling of five key sexual harassment bills on Governor Brown’s desk of which employers statewide should be aware.  Governor Brown has until Sunday, September 30th to sign or veto these bills, but it is never too early to start preparing.

Keep those Records!

AB 1867, authored by Assemblymember Eloise Gomez Reyes (D-Grand Terrace), requires employers with 50 or more employees to maintain records of internal complaints alleging sexual harassment for at least five years after the last day of employment of either the complainant or the alleged harasser, whichever is later. 

Governor Brown is expected to sign this bill.

Ban on Mandatory Arbitration

From Assemblymember Lorena Gonzalez Fletcher (D-San Diego) AB 3080 prohibits employers from requiring employees, as a condition of employment, to sign an agreement to arbitrate claims arising under the Fair Employment and Housing Act (FEHA) or the California Labor Code.  While AB 3080 has been dubbed a “sexual harassment” bill, it is actually much broader, covering all employment-related claims.

If signed into law, the bill would also prohibit an employer from requiring an employee to sign a confidentiality agreement with respect to claims of harassment.  The overall goal of this bill is to allow employees the opportunity to speak up about harassment claims without fear of retaliation.

Governor Brown vetoed a similar version of this bill last year.  It remains to be seen what he will do this year.

Retaliation

Another bill from Assemblymember Gonzalez Fletcher, AB 3081 prohibits employers from discriminating or retaliating against employees for being a victim of sexual harassment.  If signed into law, the bill would also create a rebuttable presumption that an adverse employment action taken within 30 days of the employer’s knowledge is unlawful retaliation.

Governor Brown is expected to sign AB 3081.

Expanded Training Requirements

Introduced by Senator Holly Mitchell (D-Los Angeles), SB 1343 sets new requirements for sexual harassment training that must be completed by January 1, 2020.  The bill requires employers with five or more employees to provide at least two hours of sexual harassment prevention training to all supervisors within six months of their start of employment.  It also requires employers to provide at least one hour of sexual harassment prevention training to all nonsupervisory employees

Governor Brown is likely to sign this bill.

The “Everything” Bill

Senator Hannah-Beth Jackson’s (D-Santa Barbara) SB 1300 is an all-encompassing piece of legislation.  The bill prohibits employers from requiring an employee to sign a release of claims under FEHA in exchange for a raise or as a condition of employment or continued employment.  This bill would also declare that a single incident can constitute harassment, with Jackson having said it would end a “free pass on unlawful behavior.”

Governor Brown’s decision on this bill could go either way.

What now?

While all of these bills are currently awaiting a final decision from Governor Brown, now would be a good time to get the employment-related aspects of your business in order.  Since the law might be changing come January 1, consider reviewing and updating your employee handbooks and workplace policies and developing internal processes for handling both workplace harassment training and any claims – all of which could put your business ahead of the curve.