Hunton Employment & Labor Perspectives

Driven by the wave of publicity surrounding sexual harassment allegations against prominent artists, executives, news anchors, filmmakers and legislators, and the ensuing #MeToo movement, legislators in California and several other states recently have introduced bills designed to prevent such harassment.  Below we summarize four bills introduced in the California Senate and Assembly in January 2018.  Employer groups have not yet publicly mounted a challenge to any of these bills, and it is not possible to say which, if any, of these bills will move all the way through the legislative process and be signed into law by the Governor.

S.B. 820, the Stand Together Against Non-Disclosure Act

 S.B. 820 seeks to curtail the use of confidentiality provisions in sexual harassment settlement agreements.  Applicable to all public and private employers in California, the bill would prohibit confidentiality or nondisclosure provisions in settlement agreements which restrict any party from disclosing the facts relating to claims for sexual harassment, sexual assault and sex discrimination – unless a claimant requests the inclusion of a such a provision.  Parties would remain free to require confidentiality as to the amount of a settlement, but could not shield the facts underlying the action.  The law would apply only to settlements of actions filed in court, in which the pleadings state a claim for sexual harassment, assault or discrimination.  Thus, settlements of threatened claims that are not yet filed in court could still include the broader nondisclosure provisions.  This bill is co-sponsored by California plaintiffs’ bar (Consumer Attorneys of California) and the advocacy group California Women’s Law Center.

A.B. 1867, on Recordkeeping

 A.B. 1867 proposes to add a provision to the Fair Employment and Housing Act requiring employers of more than 50 employees to maintain records of all employee sexual harassment complaints for ten years after the date the complaint was made.  The bill does not distinguish between internal complaints and those made to administrative agencies or in court.

A.B. 1870, the Stop the Harassment and Reporting Extension Act

A.B. 1870, which is sponsored by both Democratic and Republican Assembly members, proposes to amend Government Code Sections 12960(d) and 12980(b) by changing from one to three years the statute of limitations for filing any type of claim (not just one for sexual harassment) with the Department of Fair Employment and Housing.

Both A.B. 1870 and A.B. 1867 have the strong support of the plaintiff’s bar, including Consumer Attorneys of California, the California Employment Lawyers Association, and the legal advocacy group Equal Rights Advocates.

S.B. 419, the Legislative Sexual Harassment Retaliation Prevention Act

S.B. 419 creates anti-retaliation protections for “legislative employees” or “legislative advocates” who make sexual harassment complaints against state legislators – and thus, for the first time, specifically including lobbyists in a protected category.  The bill proposes to add a new provision to the Government Code which prohibits “discharging, expelling or otherwise discriminating against” those who make complaints against legislators pursuant to the FEHA or Civil Code Sections 51 (the Unruh Act), or 51.9 (prohibiting sexual harassment in the context of a business, service or professional relationship).  This bill also would require the California State Senate and Assembly to implement a system that will track and maintain harassment complaints against state legislators for a period of twelve years after a complaint is made.  The bill is styled as an urgency measure, so that it would take effect immediately.

In related pending legislation, S.B. 224 (currently on the Senate floor) proposes to add “elected officials” and “lobbyists,” among other things, to the list of examples of relationships covered by Civil Code Section 51.9’s prohibition on sexual harassment in professional, business, and service contexts.   And, A.B. 403 (pending consideration in the Senate Rules Committee) would provide whistleblower protections for employees and Members of the Legislature.  This bill also provides a right of action for a legislative employee who has made a protected disclosure and suffered an adverse action for making that disclosure.

Finally, Assemblywoman Lorena Gonzalez-Fletcher is said to be working on a packet of bills intended to protect victims of sexual harassment, including one that prohibits arbitration agreements which bar workers from pursuing sexual harassment claims in the courts.