This article sets out the details of eight new Californian laws covering gender and sexual harassment training, disclosure in settlement agreements relating to sexual harassment claims and enhanced provision for breastfeeding employees and college students.
Authors: Ross Boughton; Alexandria Witte
Firm: FordHarrison LLP
On 30 September 2018, California Governor Edmund J. Brown, Jr. signed into law eight new bills involving gender and sexual harassment training and related issues. The Governor also signed into law two bills amending California’s lactation accommodation requirements. These laws were submitted by the legislature on the heels of the #MeToo movement, and the majority of these new laws were largely written to address workplace issues with respect to sexual harassment in particular.
Importantly, Governor Brown has signed into law the following new gender and sexual harassment training laws.
New sexual harassment training requirements for employers with five or more employees (SB 1343)
This new law substantially changes the prior law, set forth in California Government Code §§ 12950-12950.1, which required employers with 50 or more employees to provide supervisors in California with two hours of sexual harassment training every two years, including within the first six months of employment. The new amendment now requires employers who employ five or more employees, including temporary or seasonal employees, to provide at least two hours of sexual harassment training to all supervisory employees in California and to also provide at least one hour of sexual harassment training to all non-supervisory employees in California within the first six months of assumption of a job position, to be completed no later than 1 January 2020, and to continue to provide such training to employees once every two years thereafter.
However, if an employer provides this training to employees after 1 January 2019, the employer is not required to provide the training by the 1 January 2020 deadline (meaning that if an employer trains employees before 1 January 2019, they will have to be trained again before 1 January 2020 to comply with this new rule).
The new amendment also requires the state’s Department of Fair Employment and Housing (DFEH) to develop or obtain a one-hour and two-hour training course on the prevention of sexual harassment which is supposed to be posted on the DFEH website, along with new posters in alternate languages so that employers and the public have access to these tools.
Talent agencies required to provide education and training on sexual harassment and eating disorders (AB 2338)
As a likely result of the highly publicised #MeToo movement in Hollywood, this new law requires talent agencies to provide materials and training to talent regarding a number of specific issues related to harassment and retaliation. First, talent agencies are now required to provide education materials (via electronic transmission, hard copy brochure, or other means) on sexual harassment prevention, retaliation, and reporting resources to artists within 90 days of any agreement to represent or an agency’s procurement of an engagement, meeting or interview (whichever comes first). The materials must be in a language that the artist understands and the talent agency must confirm with the Labor Commissioner that it has and will continue to provide such materials to artists each time the agency applies for its licence renewal.
Second, talent agencies are now required to make educational materials available to adult model artists regarding nutrition and eating disorders within the same timeframe, 90 days of any agreement to represent or an agency’s procurement of an engagement, meeting or interview (whichever comes first). With respect to minors between the age of 14 and 17 years with a valid work permit, the parent or legal guardian of the minor, as well as the minor, must receive and complete training in sexual harassment prevention, retaliation, and reporting resources.
Employer liability for any harassment to employees by non-employees, bystander intervention training, and illegal contract clauses (SB 1300)
This new amendment also substantially changes an employer’s responsibility to protect its employees from sexual harassment, making an employer potentially responsible for any type of harassment prohibited under the Fair Employment & Housing Act (FEHA) towards employees by non-employees, not just sexual harassment. The amendment also drastically changes a plaintiff’s burden of proof with respect to harassment claims, rendering even a single incident of harassing conduct sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.
It also authorises an employer to provide ‘bystander intervention training’ to their employees. This training can include information and practical guidance on how to enable bystanders to recognise potentially problematic behaviours and to motivate bystanders to take action when they observe problematic behaviours, as well as exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide them with resources they can call upon that support their intervention.
In addition, the new law also prohibits an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, from requiring the execution of a release of a claim or rights under FEHA, or from requiring an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
Contractual waivers to prevent testimony about sexual harassment are void and unenforceable (AB 3109)
This new law renders any provision of a contract or settlement agreement void and unenforceable if it waives the right of one party (or the agents or employees of a party) to the agreement to testify in an administrative, legislative, or judicial proceeding regarding alleged criminal conduct or sexual harassment, when the party has been required or requested to attend a proceeding pursuant to court order, subpoena, or written request from an administrative agency or the legislature.
Prohibition of settlement agreements with confidentiality clauses regarding sexual harassment claims (SB 820)
Existing California law prohibits settlement agreements that prohibit a party from disclosing factual information related to a legal action in which there is a cause of action for civil damages for certain sexual offences. SB 820 expands the scope and prohibits any provision in a settlement agreement that prevents disclosure of factual information relating to certain claims filed in any civil or administrative action relating to workplace sexual assault, sexual or other harassment, or sex discrimination or harassment, sex discrimination or retaliation by the owner of a housing accommodation.
Expansion of scope of sexual harassment protections (SB 224)
Historically, outside the employment context, California law permitted sexual harassment claims to be brought based only on a limited number of relationships. Put another way, you cannot sue just anyone for sexual harassment. Rather, you must be an employee or have a relationship that is otherwise covered by California’s harassment law, which in the non-employment context are generally set forth in the Unruh Civil Rights Act. Previously, those qualifying non-employment relationships included a business, service or professional relationship between the plaintiff and defendant where there was an inability by the plaintiff to easily terminate the relationship. SB 224 expands the scope of the law.
Under the new law, sexual harassment claims can now be brought against defendants that hold themselves out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party, and eliminates the requirement that the plaintiff prove that he or she is unable to easily terminate the relationship. While the statute previously stated that such a relationship may exist between a plaintiff and a person, including, but not limited to physicians, psychotherapists, dentists, attorneys, and other professions, the new bill expanded the scope to specifically include investors, elected officials, lobbyists, directors, and producers.
Legislative employee whistleblower protections and retaliation prevention (SB 419)
The Legislative Employee Whistleblower Protection Act imposes criminal and civil liability on any legislative employee or member who interferes with or retaliates against another legislative employee’s right to make a protected disclosure of a violation of a law or a standard of conduct. This new amendment extends the protections of that law and prohibits a legislative employee from being discharged, expelled, or otherwise discriminated against if they oppose a violation of the FEHA, or file a complaint, testify, or assist in any proceeding relation to a complaint of harassment. The new law also defines ‘protected disclosure’ to include a complaint made at the request of a legislative employee and a complaint made against a non-employee in specific circumstances. Importantly, this law has been implemented as an ‘emergency measure’ and is effective immediately.
Corporations: Boards of Directors (SB 826)
By no later than the end of 2019, all publicly held domestic general corporations and foreign corporations whose principal executive offices (according to the Securities and Exchange Commission 10-K form) are located in California must have a minimum of one female director on their boards (and may increase the number of directors on a board in order to comply). By no later than the end of 2021, such publicly held corporations:
- must have a minimum of one female director if their total number of directors is four or fewer;
- must have a minimum of two female directors if their total number of directors is five;
- must have a minimum of three female directors if their total number of directors is six or more.
From 1 July 2019 the California Secretary of State will publish a report on its website documenting the number of publicly held corporations in California who have at least one female director. The law has serious teeth. The failure to timely abide by this law may result in six figure fines against the corporation (USD 100,000 for a first violation and USD 300,000 for a second or subsequent violation).
Provision of facilities for breastfeeding employees and college students (AB 1976 and AB 2785)
In addition, two new amendments to California’s lactation accommodation laws have also been signed into law.
Facilities for breastfeeding employees - revised requirements for employers (AB 1976)
Previously, California employers were required to provide a reasonable amount of break time to accommodate an employee to express breast milk for the employee’s infant and to make reasonable efforts to provide the employee with a location other than a toilet stall near the work area to do so in private. The new law now requires an employer to make reasonable efforts to provide the employee with a room or location other than a bathroom near the employee’s work area to express breast milk in private. The location may include the place where the employee normally works if it meets this requirement (e.g. a private office with a lockable, opaque door). An employer who makes a temporary lactation location available to an employee is in compliance if:
- the employer is unable to provide a permanent lactation location due to operational, financial, or space limitations;
- the temporary lactation location is private and protected from intrusion while the employee expresses milk;
- the temporary lactation location is used only for lactation purposes while the employee expresses milk; and
- the temporary lactation location otherwise meets the requirements of state law regarding lactation accommodation.
However, if an employee can show that the requirement to provide the employee with such a location would impose an undue hardship when considered in relation to the size, nature or structure of the employer’s business, an employer shall make reasonable efforts to provide another location other than a toilet stall in close proximity to the employee’s workplace for the employee to express breast milk in private.
Provision of facilities for breastfeeding college students (AB 2785)
Under AB 2785, all California Community Colleges and California State Universities must provide reasonable accommodations on their campuses for a lactating student to express breast milk, breast-feed an infant, or address other needs related to breast-feeding. That includes:
- access to a private and secure room other than a restroom to do so, including a comfortable place to sit and a table or shelf to place equipment;
- permission to bring onto campus a breast pump and other lactation equipment; and
- access to a power source for a breast pump or any other lactation equipment.
Notably, satellite campuses for these schools as well as the University of California are exempted from this requirement specifically, but are still encouraged to abide by it. However, all lactating students on any college or university campus must be provided a reasonable amount of time to express breast milk or breast-feed an infant as needed. Lactating students shall also not incur academic penalties for using these accommodations.
The Bottom Line
California is taking aim at sexual harassment and discrimination and imposing a host of new requirements on employers throughout the state. Although many of the requirements are relatively small adjustments to existing laws, some will require wholesale changes to policies and practices. To ensure compliance, employers and businesses are encouraged to carefully review their policies and conduct audits and ensure legal compliance for their employment practices.