Alyssa Milano tweeted #MeToo just about one year ago. Since then, we’ve seen unprecedented attention on sexual harassment in the workplace and a number of high profile individuals have been taken to task.

For employers, the spotlight, viral encouragement to come forward and public scrutiny is translating to an outpouring of claims and lawsuits. Indeed, in September 2018, the EEOC reported a surge in sexual harassment filings–more than a 50 percent increase in suits challenging sexual harassment over FY 2017.

State legislatures across the country have responded with force saying #TimesUp and passing bills aimed at combatting workplace sexual harassment and protecting victims. (See our post on New York’s sweeping changes here.) California, in particular, has taken a lead in toughening sexual harassment laws, dramatically expanding prevention training requirements, and pushing for change at the highest echelons of public companies by demanding female representation on corporate boards.

For all the change ahead, we’ll start with what’s not changing: Governor Jerry Brown vetoed a bill that would have prohibited California employers from using mandatory arbitration agreements. In vetoing AB 3080, Governor Brown said it violated the Federal Arbitration Act and recent U.S. Supreme Court decisions by creating impermissible restrictions on arbitration agreements.

Now, here are six new laws that will undoubtedly change the landscape for California employers:

  1. Employers with five or more employees must provide anti-sexual harassment prevention training to ALL California employees.
    • SB 1343 amends Section 12950 of the California Government Code to dramatically expand requirements relating to harassment prevention training.
    • Current law requires all employers with 50 or more employees to provide two hours of sexual harassment prevention training only to supervisors.
    • Now training is mandated for all employers with five or more employees—including seasonal and temporary employees—by January 1, 2020. 
    • Within six months of assuming their positions (and once every two years thereafter), all supervisors must receive at least two hours of training, and all non-supervisory employees must receive at least one hour.
    • The new law also directs the Department of Fair Employment and Housing (DFEH) to develop online training courses on the prevention of sexual harassment in the workplace. The DFEH must make the online courses available on its website, and is further required to make the courses available in English, Spanish, Simplified Chinese, Tagalog, Vietnamese, Korean and any other language that is spoken by a “substantial number of non-English-speaking people.” Employers are permitted to direct employees to the DFEH’s training courses or may develop their own.
    • In terms of content, the training requirements are not otherwise changed from existing law. (That is, training must include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment. The training and education must also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.)
  2. No more confidentiality clauses in settlements relating to sexual harassment, sex discrimination and retaliation claims.
    • Beginning January 1, 2019, any provision in a settlement agreement that prevents the disclosure of factual information relating to certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, that are filed in a civil or administrative action is void as a matter of law. The law does not appear to apply to clauses used in settlements occurring in the pre-litigation phase (that is, prior to filing an administrative charge or judicial complaint).
    • SB 820 allow for provisions that shield the identity of the claimant, including all facts that could lead to the discovery of his or her identity. Importantly, it also allows the parties to make confidential the amount paid in settlement of a claim.
  3. Expanded definition of harassment under the Fair Employment and Housing Act and other changes to how claims of sexual harassment are proven in court.
    • Beginning January 1, 2019, SB 1300 significantly expands liability under the FEHA. (The FEHA is the primary California statute protecting employees, interns, volunteers, applicants, or persons providing services pursuant to a contract from discrimination, retaliation and harassment in employment based on protected categories, like race, religion, sex, gender, and sexual orientation, among others. It applies to all employers with 5 or more employees.) SB 1300 expands an employer’s potential FEHA liability for acts of nonemployees to all forms of unlawful harassment (removing the “sexual” limitation).
    • By expressly affirming or rejecting certain judicial decision, SB 1300 will impact how sexual harassment claims are litigated in the future.
      • It affirms language from Justice Ruth Bader Ginsburg’s concurrence in Harris v. Forklift Systems that, in a workplace harassment suit, “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.”
      • It prohibits reliance on Judge Alex Kozinksi’s Ninth Circuit opinion in Brooks v. City of San Mateo to determine what conduct is sufficiently severe or pervasive to constitute actionable harassment under FEHA.
      • It affirms reliance on the California Supreme Court’s rejection of the “stray remarks doctrine” in Reid v. Google, Inc. because the “existence of a hostile work environment depends on the totality of the circumstances and a discriminatory remark, even if made not directly in the context of an employment decision or uttered by a non-decision maker, may be relevant, circumstantial evidence of discrimination.”
      • It disapproves of reliance on Kelley v. Conco Companies to support different standards for hostile work environment harassment depending on the type of workplace.
      • It affirms the observation in Nazir v. United Airlines, Inc. that “hostile working environment cases involve issues ‘not determinable on paper.'”
    • SB 1300 prohibits employers from requiring employees to sign (as a condition of employment, raise, or bonus): (1) a release of FEHA claims or rights or (2) a document prohibiting disclosure of information about unlawful acts in the workplace, including non-disparagement agreements.
    • SB 1300 prohibits a prevailing defendant from being awarded attorney’s 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.
    • SB 1300 authorizes (but does not require) employers to provide bystander intervention training to its employees.
  4. Waivers to testify are banned.
    • Beginning January 1, 2019, SB 3109 renders void and unenforceable any provision in a contract or settlement agreement that waives a party’s right to testify in a legal proceeding (if required or requested by court order, subpoena or administrative or legislative request) regarding criminal conduct or sexual harassment on the part of the other contracting party, or the other party’s agents or employees.
  5. Talent agencies must provide sexual harassment education.
    • AB 2338 requires talent agencies to provide adult artists, parents or legal guardians of minors aged 14-17, and age-eligible minors, educational materials on sexual harassment prevention, retaliation, and reporting resources within 90 days of retention.
    • For adult model artists only, the talent agency will also be required to provide materials on nutrition and eating disorders.
    • Talent agencies will also have to retain records showing that those educational materials were provided for three years.
  6. Sexual harassment education for in-home support services is required.
    • AB 3082 requires the Department of Social Services to develop or identify and provide a copy and description to the Legislature by September 30, 2019 of:
      • Educational materials addressing sexual harassment of in-home supportive services (IHSS) providers and recipients; and
      • A method to collect data on the prevalence of sexual harassment in the IHSS program.

Takeaways

Expect to experience more and more employees coming forward with their own stories–there is no sense in denying this national reckoning. Empower employees to speak out within to avoid resorting to hashing things out publically on social media. Establish a multichannel complaint process that allows employees to bring complaints to management and HR, not to just one individual. Reinforce a strong policy against retaliation so that employees can come forward without fear of reprisal. Ensure prompt, thorough and fair review of complaints. There are times when it will be prudent to delegate the investigation to a third-party; consult with counsel to make this determination.

Training employees to recognize, respond to, and report harassment is essential. Work with counsel to do an inventory and audit of all trainings and workplace policies related to the prevention and reporting of sexual harassment and retaliation. Implement tracking to ensure all employees receive timely training. Maintain and retain training records. Consider working with outside counsel to provide training to all of your California employees on a periodic, rolling basis.

For assistance developing your harassment prevention policies and practices, please contact your Baker McKenzie employment lawyer.