Hunton Employment & Labor Perspectives

What are newly elected Governor Gavin Newsom’s views on #MeToo legislation, and how do they compare to those of his predecessor, Jerry Brown?  We may soon have answers to these questions thanks to a pair of bills introduced by Assemblywoman Lorena Gonzalez (D-San Diego), which reintroduce harassment-related proposals vetoed by Governor Brown.

The Vetoed Bill: AB 3081

Assembly Bill 3081, introduced last year, had two primary components.  First, it sought to impose joint liability on employers and labor contractors for harassment, regardless of whether either entity knew or should have known of the harassing conduct.  Second, it created a rebuttable presumption of retaliation if an employee was subject to an adverse employment action within 30 days  after his or her employer learned that the employee was subjected to sexual harassment.

Governor Brown vetoed AB 3081, explaining “Most of the provisions in this bill are contained in current law and are therefore unnecessary.  To the extent there are new provisions, they are confusing.”

The Reboot: AB 170 and 171

On January 8, 2019, the main components of AB 3081 were reintroduced as two separate bills, AB 170 and AB 171.

Joint Liability – The joint liability component of AB 3081 is unchanged in AB 170, which proposes to make employers and labor contractors (such as temporary services agencies) jointly liable for harassment by or against employees supplied by the labor contractor.

Rebuttable Presumption of Retaliation – The retaliation component of AB 3081 is picked up in AB 171, which seeks to prohibit an employer from retaliating against an employee because of his or her status as a victim of sexual harassment.  But, while the prior proposed bill created a rebuttable presumption of unlawful retaliation if the employee was subject to an adverse employment action within 30 days of when the employer learned of his or her status as a victim of sexual harassment, the latest proposal would extend this rebuttable presumption to 90 days.

The Upshot: New Name, Same Problems

Both bills raise concerns for employers.  Under existing law, the issue of joint liability for harassment turns on considerations of control over the individuals involved and knowledge of the harassing conduct.  For instance, if a temporary worker experiences harassment at his placement, the temporary services agency may be able to avoid liability if the agency neither knew nor should have known of the harassment.  AB 170 seeks to change existing law by requiring temporary services agencies and employers to share liability regardless of either entity’s knowledge or control.

AB 171 presents different problems.  Employees who expect to be disciplined or terminated may raise complaints in an effort to protect their jobs.  Under existing law, such complaints may constitute protected activity, but it is generally the employee’s burden to show a causal connection between the adverse action and the complaint.  By creating a rebuttable presumption of retaliation, AB 171 would shift the initial burden to the employer to provide a non-retaliatory justification for the adverse employment action.

In 2018, the California Legislature enacted several new harassment-related laws and rejected even more proposals.  In 2019, we are likely to see legislators reviving many of those previously rejected proposals to try their luck under Governor Newsom, particularly if he appears receptive to ideas that were blocked by his predecessor.