2019 California Employment Law Update: The Year Of #MeToo

Michael Warren

As predicted at our 2018 employment law seminar, “Don’t Let #MeToo Become #YouToo: Effectively Handling Workplace Sexual Harassment Complaints,” the movement had a significant impact on California’s new employment laws passed for 2019.  A number of the new laws address the issue of workplace sexual harassment and more generally, women in the workplace.  Below are some of the key laws that took effect in 2019.

Small Employer Anti-Harassment Training

Prior to 2019, harassment training requirements applied only to employers with 50 or more employees and only required training for supervisory employees.  Under SB 1343, the legislature expanded sexual harassment training requirements to employers with five or more employees.  The law also now requires sexual harassment training for both supervisory and non-supervisory employees.

Employers with five or more employees have until January 1, 2020, to provide harassment training to all employees within six months of their hire.  Non-supervisory employees must receive a minimum of one-hour of the mandatory harassment training, whereas supervisory employees must continue to receive two hours of training as previously required.

Changes to Settlement Agreements

To address concerns that confidentiality provisions in settlement agreements were allowing harassing conduct to continue by concealing the behavior, the legislature passed a series of new laws focused on settlement agreements.  SB 820 prohibits terms in a settlement agreement that prevent the disclosure of “factual information related to a claim filed in a civil action or complaint filed in an administrative action” relating to claims of (1) sexual assault, (2) sexual harassment, or (3) harassment or discrimination based on sex, or retaliation for reporting sex harassment or discrimination.  The law, however, does not prohibit terms that preclude the disclosure of a settlement payment amount and permits provisions in a settlement agreement that “shields the identity of the claimant and all facts that could lead to the discovery of his or her identity,” at the request of the claimant.

AB 3109 renders void any term in a settlement agreement entered into on or after January 1, 2019, that waives a party’s right to testify in any proceeding involving criminal conduct or sexual harassment when that party has been required to testify by court order, subpoena, or written request by an administrative agency or the legislature.  The law, however, does not void all nondisclosure agreements.  A party may still agree not to voluntarily speak or testify in a public forum, absent a subpoena, court order, or written request from an administrative agency.  

Finally, as part of SB 1300, employers are prohibited from requiring an employee to sign a release of a claim or right, in exchange for a raise or bonus, or as a condition for employment.  The law also precludes the use of non-disparagement or other agreements that would “deny the employee the right to disclose information about unlawful acts in the workplace, including…sexual harassment.”  However, this does not apply to “a negotiated settlement agreement to resolve an underlying claim” that has been filed by an employee.  The “negotiated” agreement must be voluntary, provide consideration to the employee, and the employee must be either represented by an attorney or be given the opportunity to retain an attorney.

Privilege Communications about Harassers

Under AB 2770, if asked by a potential employer, employers are allowed to indicate that they would not rehire a former employee based upon the employer’s determination that the former employee engaged in sexual harassment, assuming the statement is made without malice.  Such statements are now considered “privileged communications,” protecting the former employer from defamation liability.  AB 2770 also expands “privileged communications” to include internal complaints of sexual harassment, made without malice, by an employee to an employer.  

Lactation Accommodations

AB 1976 clarifies Labor Code §1031 to require that employers make reasonable efforts to provide an employee with the use of a room or other location, “other than a bathroom,” as a lactation space.  The prior language of the statute required the use of a room or other location “other than a toilet stall” for lactation, which permitted the use of bathrooms.  AB 1976’s amendments are meant to address that concern.  The law allows employers to be exempt from the requirements if they show undue hardship and make reasonable efforts to provide a lactation space other than a toilet stall in close proximity to an employee’s work area.

Women on Boards

SB 826 requires that by the end of 2019, publicly held corporations with principal executive offices in California must have at least one woman on its board of directors.  By the end of 2021, corporations with five authorized directors, must have at least two female directors, and corporations with six or more authorized directors, must have at least three females on the board.  Penalties for failing to comply with these requirements may be imposed by the Secretary of State and may include $100,000 for the first violation and $300,000 for each subsequent violation.  

Minimum Wage Increase

Finally, as a friendly reminder, effectively January 1, 2019, the state minimum wage increased to $11.00 per hour for employers with 25 or fewer employees and to $12.00 per hour for employers with 26 or more employees.  These increases are part of SB 3, which was signed into law in 2016.

The law provides that for employers with 26 or more employees, the minimum wage will increase by $1 until it reaches $15.00 per hour in 2022.  For employers with 25 or less employees, the minimum wage will increase by $1 each year until it reaches $15.00 per hour in 2023.

As always, please be aware that many cities in California have their own minimum wage requirements that exceed the state’s requirements.  Please check whether the cities where your organization operates have their own minimum wage ordinances.

If you have questions about any of these new laws or how they may impact your organization, consult your attorney.  

About the author Michael Warren

Michael is a trusted advocate and advisor. He leads the firm’s labor and employment litigation and compliance practice with firm resolve and integrity. Employers come to him for help with a variety of issues, including discrimination, wage and hour, harassment, leaves of absence, disability accommodation, workplace investigations, employment policies, and class actions.