By: Micaela L. Neal
A number of employment bills were sent to Governor Jerry Brown’s desk for his final legislative session, which ended on September 30, 2018. While he vetoed some, several were signed into law. Here are some of the more important new laws that employers should be aware of:
Senate Bill 820 – Confidentiality Provisions in Settlement Agreements.
Existing law prohibits settlement agreements from including provisions preventing the disclosure of factual information in a civil action for damages for certain sexual offenses.
This new law prohibits settlement agreements from preventing the disclosure of factual information relating to certain claims of sexual assault, sexual harassment, harassment or discrimination based on sex, or related retaliation or failure to prevent discrimination/harassment, that are filed in a civil or administrative action. Such agreements entered into on or after January 1, 2019 will be void as a matter of law. There will be an exception for a provision shielding the identity of the claimant and related facts, if the claimant requests such a provision.
Senate Bill 826 – Public Companies Must Have Woman on Board of Directors.
This law requires publicly held corporations with principal executive offices in California to have at least one female on the board of directors by December 31, 2019. By the end of 2021, there must be two female directors if the corporation has five directors, or three female directors if the corporation has six or more directors.
The Legislature recognized that several studies have concluded that publicly held companies perform better with women on the board, and determined that this change will boost the California economy, improve opportunities for women in the workplace, and protect California taxpayers, shareholders and retirees.
Senate Bill 1300 – Employer Liability for Discrimination and Harassment.
Existing law prohibits discrimination and harassment in the workplace. This new law greatly increases the burden on employers with respect to discrimination and harassment liability.
Most notably, the law provides that “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.” Additionally, even a discriminatory remark not made in the context of an employment decision and not uttered by a decisionmaker, may be circumstantial evidence of discrimination. The law also provides that “harassment cases are rarely appropriate for disposition on summary judgment.”
The law clarifies that an employer may be responsible for the actions of nonemployees with respect to any typeof harassment of employees, applicants, interns, volunteers, or independent contractors if the employer knows or should have known about the conduct. An employee alleged to have engaged in harassment may now be personally liable for retaliation, as well.
Additionally, it is now unlawful for an employer to require an employee to sign a release or waive rights under the law in exchange for a raise or bonus, or as a condition of employment, or to require the signing of a nondisparagement agreement relating to the disclosure of information about unlawful acts in the workplace, such as sexual harassment. The new law also severely limits a prevailing employer’s ability to recover attorneys’ fees and costs from a plaintiff employee.
Senate Bill 1343 – Sexual Harassment Training.
Existing law requires employers with 50 or more employees to provide sexual harassment training to supervisors.
By January 1, 2020, employers with only fiveor more employees must provide at least two hours of classroom or other interactive sexual harassment training and education to supervisors, andat least one hour of classroom/interactive training and education to all nonsupervisory employees within six months of hire. Training may be completed individually or in groups, and can take place in shorter segments. Further training must be conducted every two years. Training and education must include practical examples.
The law also includes training requirements for seasonal, temporary and migrant workers.
Senate Bill 1412 – Employment Applications – Criminal History.
Existing law prohibits employers from asking applicants to disclose (or from seeking from any source or utilizing as factor in determining employment) information relating to participating in a pretrial or posttrial diversion program, or concerning a conviction that was judicially dismissed, expunged or ordered sealed.
This new law expands the exceptions to this rule, and provides that an employer may seek information about a conviction if, pursuant to federal law, federal regulation or state law: (1) the employer is required to obtain information regarding the particular conviction (regardless of whether it was dismissed, expunged, etc.); (2) the applicant would be required to possess or use a firearm during employment; (3) an individual with a particular conviction is prohibited by law from holding the position sought (regardless of whether it was dismissed, expunged, etc.); or(4) the employer is prohibited by law from hiring an applicant with the particular conviction (regardless of whether it was dismissed, expunged, etc.).
Assembly Bill 1976 – Lactation Accommodation.
Existing law requires employers to make reasonable efforts to provide an employee with a location other than a toilet stall to express milk privately. This new law notes that a space other than a bathroom must be provided, but makes compliance somewhat easier.
An employer who makes a temporary lactation location available is in compliance if: (1) the employer is unable to provide a permanent lactation location because of operational, financial or space limitations; (2) the temporary location is private and free from intrusion while the employee expresses milk; (3) the temporary location is used solely for lactation purposes while the employee expresses milk; and (4) the temporary location otherwise meets the requirements of state law concerning lactation accommodation.
If an employer demonstrates undue hardship, the employer still must make reasonable efforts to provide the employee with the use of a room or other location in close proximity to the employee’s work area to express milk in private. An agricultural employer is compliant if it provides the employee with a private, enclosed and shaded space (i.e. an air-conditioned cab of a truck or tractor).
Employers should review their handbooks, policies and procedures to ensure compliance with this new legislation.
Micaela L. Neal is an attorney with Wanger Jones Helsley PC and practices in Fresno and Sacramento. She regularly represents employers in wage and hour, discrimination and harassment actions. This article is intended to notify our clients and friends of changes and updates to the law and provide general information. It is not intended, nor should it be used, as legal advice, and it does not create an attorney-client relationship between the author and the reader.