BTB Annual Legislative Roundup – Part Two of Two

January 23, 2019 by Christopher Hammer, Lorrie Bradley, Sarah Kanbar, Stephanie Platenkamp, Tony Rice and Kena Cador

The California Legislature passed several important labor and employment bills during the 2018 session that Governor Brown recently signed into law.  Here is a brief summary of the most notable changes grouped by subject.  All laws are effective January 1, 2019, unless otherwise noted.

 

“Me Too” and Discrimination Laws

AB 2770 – Privileged Communications for Employee Sexual Harassment Complaints

In response to the “Me Too” movement, AB 2770 was passed to expand an already existing defense that employers cannot be liable for defamation when responding to an inquiry about a former employee by a prospective employer, so long as the employer’s statements are truthful and without malice.  The bill now allows former employers to tell prospective employers about complaints of sexual harassment regarding a former employee based on credible evidence and without malice, as well as discuss whether the former employer would re-hire the employee based on a determination the employee engaged in sexual harassment.  

AB 3109 – Settlement Agreement Confidentiality

Also in response to the “Me Too” movement, AB 3109 was passed to make void and unenforceable any clause in a contract that prevents a victim of sexual harassment from testifying about alleged criminal conduct or sexual harassment.  This bill is not retroactive and only applies to contracts or settlement agreements entered into on or after January 1, 2019.  

SB 820 – Settlement Agreement Confidentiality

This bill prohibits a provision in a settlement agreement that would prevent disclosure of factual information related to a civil action or administrative complaint filed for sexual offenses including sexual assault, sexual harassment and harassment or discrimination based on sex.  This bill also creates an exception that shields the identity of the claimant including facts that could lead to their discovery.  The exception does not apply if a party is a government agency or public official.  

SB 1300 – Changes to FEHA Discrimination/Harassment Laws

This bill expands the mandate that an employer may be responsible for the acts of nonemployees with respect to sexual harassment to include all forms of harassment prohibited under FEHA.  This bill prohibits an employer from requiring the execution of a release or non-disparagement agreement  in exchange for a raise or bonus, or as a condition of employment or continued employment.  This bill also authorizes an employer to provide bystander intervention training to its employees.  Finally, this bill provides that a prevailing defendant in a civil action 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.

SB 224 – Extends Sexual Harassment Liability under Unruh Act

Current law provides that entities other than an employer may be liable for sexual harassment in certain circumstances where plaintiff has a relationship with the harasser that cannot be easily terminated (e.g.,  that with a an attorney, social worker,  or real estate agent).  This new  law drops the requirement that the relationship be one that is not easily terminated, thus expanding the entities that may be held liable for harassment to include investors, elected officials, lobbyists, and directors.  Finally, the bill makes the Department of Fair Employment and Housing responsible for the enforcement of sexual harassment claims, and makes it an unlawful practice to deny or aid, incite, or conspire in the denial of rights of persons related to sexual harassment actions.

SB 1343 – Expansion of Harassment Training to Nonsupervisory EE’s

This bill expands the requirement that employers train and educate employees in the prevention of sexual harassment.  By January 1, 2020, employers with at least five employees must provide at least one hour of sexual harassment prevention training to non-supervisory employees within six months of the employee’s hire.  This is in addition to the two hours of training that employers must already provide to supervisory employees.  Employers must train temporary or seasonal employees within thirty days after hire, and employees who will work less than six months within 100 hours worked. 

AB 2282 – Clarification of New Salary History Prohibitions (AB 168)

This bill clarifies the existing fair pay legislation enacted in 2016 and 2017, which prohibits employers from asking job applicants for their salary history, and requires employers to provide a pay scale when requested by applicants.  The new law clarifies that this means salary or wage rates must be provided to both external applicants and current employees applying for a position, after that applicant’s initial interview.  Additionally, the law clarifies that employers are permitted to ask what the applicant’s salary expectations are for the position. 

SB 826 – Mandates Female Members on Boards of Publicly Held Corporations

In a bill designed to promote equitable and diverse gender representation in corporate governance, California has imposed a new requirement that certain corporations have a specified number of women serving on that corporation’s board of directors.  In 2019, domestic general corporations and foreign publicly held corporations will be required to have at least one woman on the board of directors.  By the end of 2021, these companies must have two women directors on the boards of five or less, and three women directors on boards of six or more. 

 

Miscellaneous

SB 970 – Human Trafficking Awareness Training 

Existing law requires hotel and motel operators in California to post information about human trafficking and slavery that contains contact information for organizations that support people who are escaping trafficking or slavery.  This bill requires hotel and motel employers to also provide at least 20 minutes of training (effective January 1, 2020) to employees who are likely to come into contact with victims of human trafficking or slavery.  The training is to include information about how to identify individuals who are at risk of trafficking or slavery and how to report and respond to this issue.

The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.