On September 30, 2018, California Governor Jerry Brown signed over a dozen bills into law with the intent on making the Golden State the leader in the nation on the much-analyzed and discussed topic of sexual harassment.
Governor Brown signed his last bill on Sunday night. Over his career, he signed nearly 20,000 bills, including 1,016 this year. The new laws, on a range of issues from climate change to criminal justice to gender issues, place California on the “left coast” politically. Brown’s ambitions can be summarized by his statement that, “We are going to be the moral compass and the policy trendsetter of the country.”
While these new laws will benefit employees and address serious and relevant issues, they will continue to place more demands on employers across California who attempt to comply with the most legislated corporate territory in the country.
A full list of Governor Browns approvals and vetoes can be found in his Legislative Update
. Of the dozens of bills signed into law on September 30, the most relevant on this topic include the following:
This bill now requires an employer who employs 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all non-supervisory employees by January 1, 2020, and once every 2 years thereafter, as specified. Supervisors must receive training within 6 months of hire or promotion to a supervisory position. The training may be completed by employees individually or as part of a group presentation, and may be completed in shorter segments, as long as the applicable hourly total requirement is met.
The act requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender, as specified, to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.
The Department of Fair Employment and Housing (DFEH) must now develop or obtain 1-hour and 2-hour online training courses on the prevention of sexual harassment in the workplace, and post the courses on the department’s Internet Web site. The DFEH must also make existing informational posters and fact sheets, as well as the online training courses regarding sexual harassment prevention, available to employers and to members of the public in specified alternate languages on the department’s Internet Web site.
SB 1343 by Sexual Harassment Training Requirements Extended to Employers with 5+ Employees.
In addition, employers must post posters developed by the department regarding discrimination in employment and transgender rights in a prominent and accessible location in the workplace.
Under this new law, where an assault occurred on or after the plaintiff’s 18th birthday, the statue of limitations is extended from 3 to the later of within 10 years from the date of the last act, attempted act, or assault with intent to commit an act, of sexual assault by the defendant against the plaintiff, or within 3 years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act, attempted act, or assault with intent to commit an act, of sexual assault by the defendant against the plaintiff.
AB 1619– Sexual Assault: Statutes of Limitations on Civil Actions Expanded to 10 Years After Event or 3 Years After Discovery of Injury or Illness.
This section applies to any civil law action that is commenced on or after January 1, 2019.
SB 820– Prohibition of Secret Settlement Agreements: Confidentiality.
This law prohibits secret settlements
and non-disclosure agreements in sexual harassment cases. This bill prohibits a provision in a settlement agreement that prevents the disclosure of factual information relating to certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, that are filed in a civil or administrative action.
While a victim could choose to keep his or her name private, the perpetrator’s identity cannot be confidential. “For decades, secret settlements have been used by wealthy and well-connected perpetrators to offend repeatedly with no public accountability,” Senator Leyva said in a statement. “This critical legislation will empower victims and offer them the opportunity to finally say #TimesUp to those that have hurt them.”
In an effort to “close the gender gap” in business, the new law requires publicly traded corporations whose principal executive offices are headquartered in California to include at least one woman on their boards of directors by the end of 2019
. By December 31, 2021
, this requirement will expand to require that a minimum of two women must sit on boards with five (5) members, and there must be at least three women on boards with six or more (6+) members. The corporations’ SEC 10-K form will be used to determine the location of the principal executive offices.
The bill requires that by July 1, 2019, the Secretary of State publish the number of domestic and foreign corporations whose principal executive offices are located in California and who have at least one female director. The bill also authorizes the Secretary of State to impose fines for violations of the bill, and provides that funds from these fines are to be available, upon appropriation, to offset the cost of administering the bill.
for non-compliance will be high, including fines of $100,000 for a first violation and $300,000 for a second or subsequent violation. Companies must demonstrate their compliance by filing their board member information with the Secretary of State by the respective deadlines.
This bill specifies that an employer may be responsible for the acts of non-employees with respect to other harassment activity. Under FEHA, an employer may be responsible for the acts of non-employees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
According to Section (j)(1) of the Bill (Section 12940 of the Government Code), in reviewing cases involving the acts of non-employees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those non-employees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
SB 1300– Employer Liability for Harassment by Non-Employees.
Also, the bill, with certain exceptions, prohibits an employer, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring the execution of a release of a claim or right under the Fair Employment and Housing Act (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. The bill provides that an agreement or document in violation of either of those prohibitions is contrary to public policy and unenforceable.
According to the text of the law, “A single incident of harassing conduct is 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… The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a non-decisionmaker, may be relevant, circumstantial evidence of discrimination.”
AB-2338 Talent Agencies: Education and Training for Adults and Minors (Harassment Prevention, Nutrition, Eating Disorders)
Licensed Talent agencies must now provide educational materials on sexual harassment prevention, retaliation, and reporting resources and nutrition and eating disorders to its artists. The educational materials must be in a language the artist understands, and would require the licensee, as part of the application for license renewal, to confirm with the commissioner that it has and will continue to provide the relevant educational materials. The materials must be provided to an adult artist within 90 days of agreeing to representation by the licensee or agency procurement of an engagement, meeting, or interview, whichever comes first.
Before the agency can issue a permit to employ a minor in the entertainment industry, the an age-eligible minor and the minor’s parent or legal guardian must receive and complete training in sexual harassment prevention, retaliation, and reporting resources. The talent agency will be required to request and retain a copy of the minor’s entertainment work permit prior to representing or sending a minor artist on an audition, meeting, or interview for engagement of the minor’s services.
Penalties for violations of this law will be $100 per violation.
The talent agent licensee shall keep a record for three years confirming that it has made available educational materials regarding sexual harassment prevention, retaliation, and reporting resources to all adult artists who have been signed for representation after the effective date of the act adding this article.
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