A reminder on California #MeToo legislation

Employment Alert

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January 1, 2019 marked significant changes to California legislation. This article is a short reminder on some of the more noteworthy changes.

SB 1343 new sexual harassment training requirements

SB 1343 requires California employers with five or more employees to provide supervisory employees with two hours of sexual harassment training and non-supervisory employees with one hour of sexual harassment training by the end of 2019. Employers must thereafter provide training to employees once every two years and ensure that employees receive such training within 6 months of becoming a supervisor or being hired as a non-supervisory employee. Previously, the law only required California employers with 50 or more employees to provide supervisory employees with two hours of sexual harassment training.

SB 3109 confidential settlement agreements

A contract or settlement agreement provision that waives an individual's right to testify in an administrative, legislative, or juridical proceeding regarding alleged criminal conduct or sexual harassment is now void and unenforceable. Practically speaking, employers should (to the extent they have not already) review the non-disparagement language in their settlement and release agreements to ensure that they comply with the new law.

SB 1300 summary judgment and sexual harassment claims

Under statute, harassment cases are now considered rarely appropriate for dismissal on summary judgment. SB 1300 effectively eliminates the severe or pervasive standard that employers previously relied on to argue for the dismissal of sexual harassment claims. In this regard, a single incident of harassing conduct may now be sufficient to create a triable issue on the existence of a hostile work environment if the situation makes it more difficult for an employee to do their job. This means that it has become increasingly difficult for employers to prevail on summary judgement and therefore raises the value of harassment claims. While summary judgment still remains an option, employers are likely to require more facts to overcome the new heightened standard.

SB 826 increasing the number of female board members on public companies

By the close of 2019, publicly held corporations whose principal executive offices are in California must have at least one female member on their board of directors. By the end of 2021, the number of female board members will be determined based on the size of the board as follows: three women for boards with six or more directors; two women with boards with five directors; and one woman for boards with four or fewer directors. The Secretary of State can impose fines of $100,000 or more for the first violation and $300,000 or more for any subsequent violation.

AB 2770 employer references

AB 2770 protects a former or current employer from liability when answering an inquiry from a prospective employer as to whether the employer would rehire the applicant. Employers are permitted to state whether its decision was based on the current or former employer's determination that the applicant engaged in sexual harassment. While employers may have more room for candid responses to any such inquiries, the area remains fraught with risk and they should consider seeking legal counsel for assistance in navigating these waters.

On the horizon

We expect additional #MeToo-related legislation to continue under Governor Gavin Newsome's administration – including the potential revisiting of bills that were vetoed in 2018 under the previous administration, most specifically limitations on the use of mandatory arbitration agreements to resolve claims involving sexual harassment.

Lean more about these developments by contacting either of the authors or your usual DLA Piper attorney.