Hunton Employment & Labor Perspectives

Sexual harassment is a recurring theme in the bills signed into law by California Governor Jerry Brown on September 30, 2018.  These new laws, which take effect on January 1, 2019, continue the trend of expanding protections for California employees.

 Hush-Money – Three of the bills signed by Governor Brown on September 30 target settlement agreements that prohibit disclosure of sexual harassment claims. AB 3109 makes void and unenforceable any provision in a contract or settlement agreement that waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.  SB 820 prohibits settlement agreements from including a provision that prevents the disclosure of factual information related to claims of sexual assault and sexual harassment.  However, this bill does not prohibit confidentiality of the settlement amount.  SB 1300 voids any agreement in which an employee forfeits his or her right to disclose unlawful acts in the workplace, including acts of sexual harassment.

Redefining The Hostile Work Environment Standard – SB 1300 also declares that a single incident of harassing conduct could be sufficient to create a triable issue regarding the existence of a hostile work environment in certain circumstances.

 Outside of the Employment Context – SB 224 expands the reach of sexual harassment claims under Civil Code § 51.9, which covers non-employment relationships.  The amendments to Civil Code § 51.9 allow a plaintiff to prove a cause of action for sexual harassment against a defendant who held himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship, and specifically identifies investors, elected officials, lobbyists, directors, and producers among the potential defendants.

 An Ounce of Prevention – Existing law requires California employers with 50 or more employees to provide all of their supervisory employees at least two hours of sexual harassment training every two years.  SB 1343 extends this requirement to employers with five or more employees, and also requires at least one hour of training for all nonsupervisory employees by January 1, 2020 (and then again every two years).

Arbitration Survives – In a bit of good news for employers, Governor Brown vetoed, A.B. 3080, which would have restricted the use of arbitration agreements.  In his veto message the Governor acknowledged the legislation likely conflicted with federal law.

 We are likely to see more sexual harassment bills cross the governor’s  desk as the California Legislature continues to respond to the #MeToo movement.  In the meantime, California employers should review their settlement agreements and employee training to ensure they are in compliance with this most recent wave of sex harassment legislation.