Why it matters

The California legislature did not slow down over the summer months, passing several employment-related bills and sending them to Governor Jerry Brown’s desk for a signature. Among the measures that could become law are Assembly Bill 3080, which would prohibit workers from having to sign arbitration or nondisclosure agreements as a condition of employment, and Senate Bill 820, a proposal that would prohibit and make void any provision that prevents the disclosure of information related to civil or administrative complaints of sexual assault, sexual harassment, and workplace harassment or discrimination based on sex. In addition, Senate Bill 3109 would void any provision that waives a party’s right to testify in a legal proceeding regarding criminal conduct or sexual harassment on the part of the contracting party, and Assembly Bill 1867 would expand record retention duties for employers with 50 or more employees. Other legislation includes Assembly Bill 1870, an extension from one to three years of the deadline to file an administrative charge with the Department of Fair Housing and Employment, and Senate Bill 1343, pursuant to which employers of five or more employees would be required to provide certain sexual harassment prevention training by Jan. 1, 2020. Governor Brown has until the end of September to take action on the bills.

Detailed discussion

The impact of the #MeToo movement continues in the state of California as legislators have responded with a series of legislative proposals. Below are some of the bills enacted this summer that are currently sitting on Governor Jerry Brown’s desk, waiting for a signature.

  • Assembly Bill 3080. The measure would prohibit an employer from requiring any applicant for employment or any employee to waive any right, forum or procedure for a violation of any provision of the California Fair Employment and Housing Act (FEHA) or other specific statutes governing employment. Any agreement entered into, modified or extended on or after Jan. 1, 2019, would forbid an employer from requiring, as a condition of employment, that a job applicant, employee or independent contractor not disclose instances of sexual harassment the individual suffered, witnessed or discovered in the workplace. Retaliation would be actionable under the bill, with injunctive relief and attorneys’ fees available for violations.
  • Senate Bill 820. Covering both private and public employers, the Stand Together Against Non-Disclosures (STAND) Act would prohibit a provision in a settlement agreement that prevents the disclosure of factual information relating to claims of sexual assault, harassment or discrimination in the workplace. Any such provision entered into on or after Jan. 1, 2019, would be void as a matter of law and against public policy. The measure did carve out an exception for a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity as long as the anonymity is requested by the claimant and a government agency or public official is not a party to the agreement.
  • Assembly Bill 3109. Pursuant to the measure, any contract or settlement agreement entered into on or after Jan. 1, 2019, that waives a party’s right to testify in a legal proceeding regarding criminal conduct or sexual harassment on the part of the other contracting party, or the other party’s agents or employees, would be void and unenforceable. The bill applies to testimony whether required or requested by court order, subpoena, or administrative or legislative request.
  • Assembly Bill 1867. Under this bill, employers with 50 or more workers would be required to maintain records of sexual harassment complaints for at least five years after the last day of employment of either the complainant or the alleged harasser named in the complaint, whichever is later. Violations would result in an order from the Department of Fair Employment and Housing (DFEH) mandating compliance.
  • Assembly Bill 1870. This bill would amend the FEHA to extend a complainant’s time to file an administrative charge with the DFEH from one year to three years for complaints alleging employment discrimination, including sexual harassment.
  • Senate Bill 1343. The measure would require an employer that employs five or more employees—including temporary or seasonal workers—to provide at least two hours of sexual harassment prevention training to all supervisory employees and at least one hour of sexual harassment prevention training to all nonsupervisory employees by Jan. 1, 2020, and once every two years thereafter. The DFEH would be tasked with making available one-hour and two-hour online training courses that employers could use.

To read A.B. 3080, click here.

To read S.B. 820, click here.

To read A.B. 3109, click here.

To read A.B. 1867, click here.

To read A.B. 1870, click here.

To read S.B. 1343, click here.