California, always a pioneer when it comes to workplace sexual harassment law, has enacted additional legislation that went into effect on January 1, 2019. Companies need to be aware of this new legislation in order to revise their policies and update their employee handbooks to reflect the changes. Failure to do so could result in unacceptable liability, especially for small companies with limited financial resources. The following is a summary of the new legislation.
Expanded Definition of Sexual Harassment: The legal definition of sexual harassment has been expanded by SB 1300, which broadened the legal definition of “hostile work environment” sexual harassment to include even a single incident. This is as long as the incident significantly interfered with the employee’s performance or resulted in an “intimidating, hostile or offensive” work environment.
Prior to 2019, employers were already potentially liable for sexual harassment of an employee, intern, applicant, or contactor by a nonemployee (a client, for example). SB1300 expands this liability to include conduct based not only on gender but also on other protected characteristics such as race or religion.
Complaint Procedures: The new legislation grants employees a limited right to share information about harassment complaints with certain parties such as witnesses and victims.
Defamation Lawsuit Restrictions: An employee who is fired for sexual harassment might be tempted to use his former employer as a reference. Before AB 2770 came into force this year, many employers would hesitate before informing a potential new employer that the employee is ineligible for rehire due to sexual harassment allegations. This is because they feared that their ex-employee might file a defamation lawsuit against them. AB 2770 prevents an ex-employees from filing such a lawsuit.
Restrictions on the Content of Nondisclosure Agreements: SB 820 provides that employers may not include a clause in a settlement agreement that prevents employees from disclosing information regarding certain sexual assault, sexual harassment, harassment, or sex discrimination claims if the employee, signing the settlement agreement, has already filed a lawsuit or an administrative complaint.
This new legislation apparently does not restrict the content of a settlement agreement entered into before a formal claim has been filed.
Settlement Agreement Restrictions: Except in a lawsuit settlement agreement, employers can no longer force their employees to waive their harassment claims, nor can they force employees to agree to “gag orders” preventing them from discussing harassment. An employee is considered to have been forced if compliance is made a condition of employment or on the receipt of a raise or bonus.
Sexual Harassment Prevention Training: Sexual harassment prevention training requirements have been expanded to include companies with as few as five employees (including temporary workers). The law requires at least two hours of training every two years for supervisors and one hour every two years for non-supervisory employees. The law will also require the retraining of employees who were trained before 2019.
Contact CKB Vienna for Candid, Practical Advice
If you are concerned about how your company should react to California’s new sexual harassment legislation, we can help you formulate an action plan based on your company’s individual circumstances. Call CKB Vienna at 909-980-1040, or contact us online to set up an appointment to speak with us. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.