California

The California Legislature enacted a number of laws that took effect January 1, 2019, and are designed to prevent and combat sexual harassment in the workplace. For example, California now requires that all employers with five or more employees provide at least two hours of sexual harassment and abusive conduct training to supervisory employees, and at least one hour of such training to nonsupervisory employees (including full-time, part-time, seasonal and temporary employees, and any others hired to work for less than six months). This training must be provided by January 1, 2020, and every two years thereafter.

In addition, the California Legislature enacted procedural and substantive changes regarding the litigation of harassment-related claims. In particular, California law now limits a prevailing employer’s ability to collect legal fees and costs to actions that are “frivolous, unreasonable, or groundless” when filed. A new law now also provides victims of sexual assault and attempted sexual assault additional time to file a civil action for damages: either within 10 years of the alleged assault or within three years after the victim discovers, or reasonably should have discovered, that the assault occurred, whichever is later. The California Legislature stated its intent to change the evidentiary standards in harassment cases by, for example, lowering the burden to show that harassment altered a plaintiff’s working conditions, allowing a single harassment incident to constitute a triable issue regarding hostile work environment, and stating that harassment cases are rarely appropriate for summary judgment disposition. In addition, the California Legislature enacted a law designed to eradicate harassment in the business relationship context by no longer requiring a plaintiff to prove he or she was unable to terminate the business relationship.

The new laws restrict the ways that an employer can contractually limit an employee’s ability to bring, or participate in, actions or proceedings relating to unlawful conduct in the workplace. For example, employers are prohibited from requiring an employee to sign a release of a claim or right under California’s Fair Employment and Housing Act in exchange for a raise or bonus, or as a condition of employment or continued employment. California law also prohibits an employer from (i) attempting to deny an employee’s right to disclose information about unlawful or potentially unlawful acts in the workplace, (ii) executing a settlement agreement that prevents an employee from disclosing information about pending harassment actions, and (iii) executing any contract or settlement agreement that waives an employee’s right to testify in proceedings about alleged criminal conduct or alleged harassment.

These new laws are consistent with the trend of revisiting and revising executive employment agreements to shield employers from liability if executives engage in unlawful conduct. For example, employers are revising definitions of “for cause” terminations to encompass sexual misconduct, adding clawback provisions when misconduct is revealed after severance has been paid and requiring indemnification for costs arising from an executive’s misconduct.

Delaware

The Delaware Legislature passed a new law that took effect January 1, 2019, with increased protections against sexual harassment, harassment training requirements and notice obligations. The new law builds on the Delaware Discrimination in Employment Act by explicitly making sexual harassment an unlawful employment practice when (i) submission to such harassment is made — either explicitly or implicitly — a term or condition of employment, (ii) submission to or rejection of such harassment is used as the basis for employment decisions affecting an employee, or (iii) such harassment has the purpose or effect of unreasonably interfering with an employee’s work performance or creating an intimidating, hostile or offensive working environment. Employers face liability for sexual harassment of an employee when (i) a supervisor’s sexual harassment results in a negative employment action of an employee, (ii) the employer knew or should have known of a nonsupervisory employee’s sexual harassment of an employee and failed to take appropriate corrective measures or (iii) a negative employment action is taken against an employee because the employee filed a discrimination charge, participated in an investigation of sexual harassment or testified in any proceeding about the sexual harassment of an employee.

These new protections apply to employers with at least four employees, including the state, General Assembly, state agencies and labor organizations. The new law protects traditional employees, unpaid interns, applicants, joint employees and apprentices. It also provides employers with an affirmative defense if they can prove that (i) they exercised reasonable care to prevent and correct any harassment promptly and (ii) the employee unreasonably failed to take advantage of any preventive or corrective opportunities the employer provided.

For employers with 50 or more employees in Delaware, the new law requires “interactive” sexual harassment training and education that must be provided to both nonsupervisory employees and supervisors as follows: (i) new employees must be trained within one year of beginning employment and every two years thereafter, and (ii) current employees must be trained within one year of January 1, 2019, and every two years thereafter. Employers who provided existing nonsupervisory employees and supervisors with legally compliant training before January 1, 2019, are not required to provide additional training until January 1, 2020.

New York

As discussed in the September 2018 edition of Employment Flash, by October 9, 2019, all New York state employers must provide sexual harassment training to all employees located in the state and must do so every year thereafter. Beginning January 1, 2019, all companies that bid on state contracts must submit an affirmation that they have a sexual harassment policy and have provided compliant sexual harassment training to all employees. The sexual harassment training must include (i) interactive components, (ii) an explanation of sexual harassment, (iii) examples of prohibited conduct, (iv) information concerning the federal and state statutory provisions on sexual harassment and available remedies, (v) information concerning employees’ rights of redress and available forums for adjudicating claims, and (vi) information addressing the conduct and responsibilities of supervisors.

In addition, as discussed in the June 2018 edition of Employment Flash, New York City passed an anti-harassment law requiring employers with 15 or more employees to provide sexual harassment training to all employees who work 90 or more hours per calendar year in New York City. This law goes into effect April 1, 2019, and requires training every year thereafter. Like the state version, the New York City training must be interactive and contain the components described above. In addition, the training must describe the adjudication process of numerous city and state agencies and provide information on bystander intervention training.