California has made sweeping changes to state laws regarding sexual harassment. The new laws—AB 1619, AB 3109, SB 820, SB 1300 and SB 1343—impose greater requirements on employers and increase potential employer liability. Employers should be aware of the content of these new laws, described below, in order to remain in compliance and avoid potential liability.
AB 1619 extends the time that victims have to bring sexual assault claims, which is commonly referred to as the statute of limitations period. The time a claimant has to commence such an action will be the later of 1) ten years from the date of the last act, attempted act, or assault with the intent to commit an act of sexual assault, or 2) within three years of the date the alleged victim discovers or reasonably should have discovered that an injury or illness resulted from an alleged act, attempted act, or assault with the intent to commit an act of sexual assault.
This law applies to any civil action for recovery of damages suffered as a result of sexual assault commenced on or after January 1, 2019, where the alleged assault occurred on or after the plaintiff’s 18th birthday.
Previously, plaintiffs bringing claims of sexual harassment generally had two years from the alleged assault to commence an action. Because the statute of limitations has been extended, employers are exposed to possible claims based on past conduct, which would otherwise have been barred by the shorter limitations period.
AB 3109 makes void and unenforceable any provision in a contract or settlement agreement whereby a party waives their right to testify in an administrative, legislative, or judicial proceeding regarding alleged criminal conduct or sexual harassment. This law applies to any contract or settlement agreement entered into on or after January 1, 2019.
Employers should remove any provision in contracts and/or settlement agreements that would prevent a party to the agreement from testifying about alleged sexual harassment.
SB 820 adds a new section to the California Code of Civil Procedure, Section 1001. This statute prohibits settlement agreements entered into on or after January 1, 2019, from containing any provision preventing disclosure of information relating to claims of sexual assault, sexual harassment, or harassment or discrimination based on sex filed in a civil or administrative matter. Any such provision is void as a matter of law and against public policy. Nor may a court enter an order, even if by stipulation, that restricts disclosure of said information. However, the parties may agree to keep the amount paid in settlement of a claim confidential.
However, at the request of the claimant the parties may agree to a provision in any settlement agreement that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including pleadings filed in court.
Employers must assure that any settlement agreement does not prohibit disclosure of factual information related to claims of sexual assault, sexual harassment, or harassment or discrimination based on sex. This would include any severance or separation agreements.
Existing state law, namely the California Fair Employment and Housing Act (FEHA), makes it unlawful for an employer to engage in harassment of any employee. The employer can be liable for sexual harassment of an employee by a non-employee if the employer or its agents or supervisors knew or should have known of the non-employee’s conduct and failed to take appropriate action.
SB 1300 expands the responsibility of employers for the acts of non-employees to include all forms of unlawful harassment.
It also adds Section 12923 to the California Government Code, which makes various legislative declarations that are anticipated to make it harder for employers to prevail on harassment claims made against them by their employees. These declarations include the following: (1) harassment cases are rarely appropriate for summary judgment; (2) a single “incident of harassing conduct” may suffice under certain circumstances to support a claim of hostile work environment; (3) in a workplace harassment suit, it is unnecessary for the plaintiff to prove his or her tangible productivity has declined as a result of the harassment; and (4) the legal standard for sexual harassment does not vary by 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 prohibits employers from requiring an employee execute a release of a claim or right under FEHA or 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, either in exchange for a bonus or as a condition of employment or continued employment.
As a result of the numerous changes included in SB 1300, employers should be prepared to face a greater challenge when opposing harassment claims and increased potential liability.
SB 1343 greatly expands the sexual harassment training requirements. By January 1, 2020, any employer with five or more employees, including temporary or seasonal employees, must provide at least two hours of sexual harassment training to all supervisory employees and at least one hour to all non-supervisory employees, and once every two years thereafter.
Palmer Kazanjian focuses its practice on labor and employment law. We can provide employers practical advice to assure compliance with these new requirements.