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California Legislature Changes a Number of Employment Laws that Will Affect You. And Me, Too. (SWIDT?)

by D. Gregory Valenza | | September 30, 2018

As the Legislative session closed, Governor Jerry Brown, his final term as governor ending, put an indelible mark on employment law.  Several of the bills that Governor Brown signed will require changes to employment documents, new training, and new approaches to employer-employee disputes and litigation.  There are too many laws for one post, frankly.  So, please look forward to more posts and articles about these new laws in the weeks to come.  Because of the new requirements, employers should start to get ready before the end of the year(!)  Good news is that small employers have until 2020 to implement anti-harassment training.  And all employers have until 2020 to start training non-supervisors, as required by the new law.

 Here is a quick summary of the most significant bills signed this weekend. 

SB 1300 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Unlawful employment practices: discrimination and harassment. Text is here. 
Lowers the standard of proof required to prove harassment and expresses disapproval for summary judgment in harassment cases. 
Makes it illegal for an employer to require new or current to release FEHA claims in exchange for a bonus, promotion, or continued employment.  Also makes non-disparagement clauses illegal under the same circumstances.  However, this does not affect settlement agreements pertaining to live disputes (even based on internal complaints). 
Codifies case law making it very hard for employers to recover attorney’s fees and costs when they win
Imposes personal liability on anyone who retaliates against someone who opposes harassment or participates in harassment proceedings
SB 1343 by Senator Holly Mitchell (D-Los Angeles) – Employers: sexual harassment training: requirements. Text is here.

This law expands the current anti-harassment training requirement in California.  The law will require employers of 5 or more employees – not 50 or more as it is now – to provide (1) 2 hours of training for supervisors and (2) 1 hour of training for non-supervisors every two years.  The DFEH will provide some kind of on-line training that satisfies the requirement. 

AB 1976 by Assemblymember Monique Limόn (D-Goleta) – Employment: lactation accommodation.   Text is here
This new law requires employers to construct a dedicated place for women to express breast milk.  If impracticable for reasons stated in the law, then the employer can provide a “temporary” lactation area that meets certain conditions. 
AB 3109 by Assemblymember Mark Stone (D-Scotts Valley) – Contracts: waiver of right of petition or free speech. Text is here. 
A provision in a contract or settlement agreement is void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.
SB 224 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Personal rights: civil liability and enforcement. Text is here. 
Expands the list of non-employee- employer relationships that can give rise to a “sexual harassment” cause of action. For example, it adds “Director” or “Producer,” along with other categories of harassers that may not have an employer-employee relationship with the victim.   And expands the jurisdiction of the Department of Fair Employment and Housing to investigate claims. 
SB 419 by Senator Anthony Portantino (D-La Cañada Flintridge) – Legislature: Whistleblower protection and retaliation prevention. [Emergency measure effective immediately] Text is here
 This bill tightens protections against harassment perpetrated against employees of the Legislature. 
SB 820 by Senator Connie Leyva (D-Chino) – Settlement agreements: confidentiality.  Text is here.
Settlement agreements cannot impose non-disclosure of the facts that gave rise to the claim of sexual assault, harassment, or retaliation arising from protected activity related to harassment.  This bill will require re-drafting of release agreements that are effective after January 1, 2019.
SB 826 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Corporations: boards of directors. Text is here
 Requires “publicly held” corporations that have their executive offices in California to have at least one female member of the Board of Directors by 12/31/2019, and increases the minimum number by 2021, depending on the size of the board. 
Believe it or not, this is a summary of just some of the bills that were passed in the past 7 days.  Many of the others have limited applicability or will not require policy changes.  So, I’m doing triage for you.  As I said, we’ll cover other significant laws in the coming days and weeks. 
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