2019 CA New Laws in Response to #MeToo Movement

Posted on February 19, 2019

Impact of the #MeToo movement

The impact of the #MeToo movement can be seen in a wave of new legislation, an increase in EEOC enforcement and an increase in civil cases. The #MeToo movement has also increased Fair Pay Act filings and more scrutiny in enforcement. 

The following are new legislation driven by the #MeToo Movement: 

• SB 224 expands the types of professional and business relationships that can be the basis of a sexual harassment claim. It also expands the investigative scope of the Department of Fair Employment and Housing (DFEH) when enforcing the law. The bill specifically includes investors, elected officials, lobbyists, directors and producers as listed persons who may be liable for sexual harassment. SB 224 also eliminates the requirement that the accuser proves there is an inability by the plaintiff to easily terminate the relationship. 

Individuals who have a professional or businesses relationship with an individual and are not in a direct employment relationship or are a third party much understand that they may face harassment liability. 

• SB 820 prohibits requirements in settlement agreements, entered into after January 1, 2019, that prevent the disclosure of truthful information relating to claims of sexual assault, harassment, or discrimination based on sex, that are filed in a civil or administrative action. 

Employers should review confidentially provisions in settlement agreements to ensure compliance. 

• SB 1300 stipulates that an employer can now be held responsible for the acts of nonemployees in respect to all types of prohibited harassment of employees, applicants, unpaid interns, volunteers and contractors. The legislation also authorizes, though doesn’t require, an employer to provide bystander intervention training to their employees for how to recognize potentially problematic behavior and act when they observe problematic behaviors. SB 1300 also: 

Prohibits an employer from requiring an employee to sign a release of claim or right under FEHA in exchange for a raise, bonus or as a condition of employment. 

Prohibits employers to require employees to sign a nondisparagement agreement or other document that denies the employees’ right to disclose information about unlawful acts in the workplace. 

Stipulates that a single incident of harassment is enough to qualify as severe and pervasive. 

Reinforces prior case law reinforcing the “Stray Remarks Doctrine” that the existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if it is not made directly in the context of an employment decision or uttered by a non-decisionmaker. 

Specifies that harassment cases are rarely appropriate for disposition on summary judgment. 

• SB 1343 expands sexual harassment training requirements. Under this legislation, all employers with at least five employees must provide at least two hours of sexual harassment training and education to all supervisory employees and at least one hour of sexual harassment training to all non-supervisory employees by January 2020 and once every two years thereafter. 

• AB 2770 designates certain types of employer communications regarding sexual harassment as “privileged.” Employers should continue to limit information provided in reference checks of prior employees to avoid defamation claims. 

• AB 3109 voids a provision in a contract or settlement agreement entered into after January 1, 2019 if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment. 

Employers must recognize the trend in recent legislation that is in direct response to #MeToo. All settlement and confidentiality agreements should be reviewed as well as policies on reference checks. Most of all, employers should plan now to ensure that they meet the new sexual harassment training requirements that must be met by the end of 2019. 
Lauren Sims is the article’s author and the Director of Human Resources. Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation. 
eqHR Solutions provides professional, tactical and strategic human resources support; ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.