2018 END-OF-SESSION BILLS SIGNED BY GOVERNOR BROWN

NEW CALIFORNIA EMPLOYMENT LAWS SIGNED BY GOVERNOR BROWN

At the close of the 2018 legislative session, California Governor Jerry Brown signed into law several important employment bills. Below is a summary of signed bills that apply generally to private employers.  All bills are effective January 1, 2019, unless otherwise indicated. Please feel free to contact us with any questions about the new requirements or necessary policy revisions.

Sexual Harassment Training Requirements: SB 1343

On September 30, 2018, Governor Brown signed SB 1343, which requires employers with five or more employees (or five or more contractors regularly providing services to the employer) to provide two hours of sexual harassment training to all supervisory employees by January 1, 2020 (and every two years thereafter).  Previously, only employers with 50 or more employees or contractors had to provide sexual harassment training to their supervisory employees.  Moreover, under the bill, employers with five or more employees or contractors must also provide one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020 (and every two years after that). All new regular employees must receive the required training within six months of their hire date, and temporary employees who are hired to work less than 6 months must receive the required training within 30 calendar days or 100 hours worked, whichever occurs first. (Note: If the temporary employee is employed by a temporary services employer to perform services for clients, the training must be provided by the temporary services employer, not the client.)

SB 1343 specifies that an employer who provides the required training to an employee after January 1, 2019 satisfies the January 1, 2020 deadline.

Discrimination and Harassment: SB 1300

On September 30, 2018, Governor Brown signed SB 1300, a bill that makes several changes to the Fair Employment and Housing Act.   As an initial matter, the law makes a number of legislative findings and declarations related to legal standards applicable to sexual harassment claims.  These include statements that (1) harassment cases are rarely appropriate for summary judgment, (2) a “single incidence” of harassment may be sufficient to allege a hostile work environment claim, (3) the existence of a hostile work environment claim depends on the totality of the circumstances and a discriminatory remark may be relevant, circumstantial evidence of discrimination (rejecting a “stray remarks” doctrine that some federal courts have adopted); and (4) the legal standard for sexual harassment should not vary by the type of workplace, and it is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past.

SB 1300 also does the following:

  • Extends an employer’s liability for the acts of nonemployees to any harassment (not just sexual harassment) of an applicant, employee, unpaid intern, volunteer or contractor, if the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action.
  • Provides that an employee may be held personally liable for retaliation under FEHA.
  • Prohibits an employer from requiring an employee to sign a non-disparagement agreement or other document precluding the employee from disclosing information about unlawful or potentially unlawful conduct in the workplace (including, but not limited to, sexual harassment), and prohibits employers from requiring an employee to execute of a release of a claim under FEHA in exchange for a raise, bonus, or continued employment; however, these prohibitions do not apply to a “voluntary, deliberate, and informed” settlement agreement to resolve an underlying claim that has been filed by an employee in court, before an administrative agency, alternative dispute resolution forum, or through an employer’s internal complaint process as long as the employee is represented by an attorney or is given notice and an opportunity to retain an attorney.
  • Amends FEHA’s attorneys’ fees provision to prevent a prevailing employer from recovering fees and costs unless an action was frivolous, unreasonable, or totally without foundation.

Confidentiality of Settlement Agreements: SB 820

On September 30, 2018, Governor Brown signed SB 820, which applies to any contract or settlement agreement entered into on or after January 1, 2019.  Under the bill, any provision in a settlement agreement that prevents the disclosure of factual information relating to certain claims of sexual assault, sexual harassment, or workplace harassment or discrimination based on sex, or an act of retaliation against a person for reporting harassment or discrimination based on sex, that are filed in a civil or administrative action, is void as a matter of law and against public policy.  Moreover, the bill precludes courts from restricting the disclosure of such facts, by stipulation or otherwise, in relevant civil proceedings.  It does not, however, ban provisions preventing the disclosure of settlement payment amounts.  And, it is not applicable to a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, if the provision is included within the settlement agreement at the request of the claimant (unless a government agency or public official is a party to the settlement agreement).

Contractual Waiver of Right to Testify: AB 3109

On September 30, 2018, Governor Brown signed AB 3109.  Under this bill, any provision in a contract or settlement agreement that waives a party’s right to testify in an administrative, legislative or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment is void and unenforceable.  AB 3109 applies to any contract or settlement agreement entered into on or after January 1, 2019.

Lactation Accommodation: AB 1976

The California legislature passed two lactation accommodation bills this session, SB 937 and AB 1976.  Governor Brown vetoed SB 937, which was largely based on San Francisco’s Lactation Accommodation Ordinance, and signed AB 1976.  Existing California law provides that a toilet is not suitable for use by an employer for purposes of providing employees a private area in which to express breast milk.   AB 1976 states that a bathroom is unsuitable for use as a lactation location.  The bill also provides that if the employer can demonstrate to the Department of Industrial Relations that providing an employee with the use of a room or other location, other than a bathroom, to express breast milk would impose an undue hardship, the employer is required to make reasonable efforts to provide a room or location for expressing milk that is not a toilet stall.

Paid Family Leave for Qualifying Exigencies: SB 1123

Beginning on January 1, 2021, an individual may apply for paid family leave benefits from the State of California as a result of time off work due to a qualifying exigency related to the covered active duty or call to covered active duty of the individual’s spouse, domestic partner, child, or parent in the armed forces of the United States.

Cal/OSHA Electronic Recordkeeping Requirements: AB 2334

On September 19, 2018, Governor Brown signed AB 2334, requiring Cal/OSHA to monitor rulemaking at the federal level and, if it determines that federal OSHA has eliminated the requirement that employers electronically report injury and illness data, it shall adopt regulations requiring California employers to electronically report data as was required under the proposed federal rule as it read on January 1, 2017.  AB 2334 also specifies that a violative “occurrence” continues until it is corrected, Cal/OSHA discovers the violation, or the duty to comply with the requirement is no longer applicable.  In other words, a failure to record an injury or illness would be deemed a “continuing violation” until discovered, corrected or no longer available.

Please note that this summary is not intended to constitute legal advice. If you have questions regarding compliance with these new California laws or other employment laws, please feel free to contact either Kristin Pedersen or Maki Daijogo at Daijogo & Pedersen, LLP through our website, www.dpemploymentlaw.com, or by calling us at 415.924.9400.