We hope you are having a great start to 2019.

In 2018, California and other states passed new labor and employment laws affecting businesses and individuals. Maier Law Group is pleased to bring you a summary of the new developments below.

California Sexual Harassment Update 

If you missed our blog post, you may not know that the California legislature passed a number of laws specifically relating to sexual harassment, including:

1. New Sexual Harassment Training Requirements:

California Senate Bill 1343  amends current law to require that, by January 1, 2020, and once every two years thereafter,

• employers with five or more employees must provide one hour of sexual harassment training to all non-supervisory employees, including temporary and seasonal employees; and

• employers must provide two hours of training to all supervisory employees.

After January 1, 2020, employers must provide the training within six months of hiring the non-managerial employee. Note again, that the number of employees that triggers this requirement is now 5 instead of 50.

2. Proving Harassment:

There are now new standards for determining what constitutes sexual harassment. California Senate Bill 1300 amends the Department of Fair Employment and Housing Act and affirms that

• a "single incident of harassment" is sufficient to show a hostile work environment; and

• the bill also clarifies that courts may consider "inappropriate stray remarks" when determining whether a hostile work environment exists, even when such remarks are not made in the employment context.

In addition, the law establishes that sexual harassment cases “are rarely appropriate for disposition on summary judgment,” meaning that it will be very hard to get a sexual harassment case dismissed without a trial. Thus, this change in the law could result in an increase in the number of sexual harassment lawsuits filed and pursued to trial.

3. Secret Settlements: 

The STAND Act (Stand Together Against Non-Disclosures – SB 820) is another new law. 

This law prohibits confidentiality provisions in settlement agreements that prevent disclosure of factual information related to civil or administrative complaints of sexual assault, sexual harassment, or discrimination based on sex, including failure to prevent and retaliation for reporting sexual harassment or discrimination.

Existing California law currently prohibits parties in civil actions seeking damages for felony sexual offenses from using confidentiality agreements to prevent disclosure of those facts. However, SB 820 significantly expands the law to now include actions seeking damages for sexual assault, sexual harassment or workplace harassment, or sex discrimination.

There’s an exception, however, in that the claimant can ask for a provision in the agreement to conceal any information that could identify her/him (this protection is not available to the accused).

Note that SB 820 also does not limit the parties’ ability to keep the monetary amount private.

This means that employers should be reviewing the current language of their settlement agreements to ensure that confidentiality provisions are not used when a civil or administrative complaint has been filed (as opposed to settling a matter based on a demand letter or otherwise). Confidentiality provisions dealing only with settlement amounts are acceptable, however. This law thereby eliminates the currently existing incentive to settle to avoid publicity, even in cases that employers believe are meritless.  Therefore, this law may also create a rise in cases going to trial.

Other California Updates

Minimum Wage Increases

Under Senate Bill 3, effective January 1, 2019, the state minimum wage increased to $11.00 per hour for employers with fewer than 25 employees, and up to $12.00 per hour for employers with 26 or more employees. However, there may be higher minimum wage requirements depending on the city where your business is located. 

Women Must Be On Boards of Directors

Senate Bill 826 requires that all publicly-traded corporations headquartered in California have at least one woman on their Board of Directors. Beginning in 2021, however, companies must have 2 female directors if the corporation has 5 directors and 3 female directors if the corporation has 6 or more directors.

Lactation Accommodations

In an ongoing effort to support working mothers, Governor Brown signed Assembly Bill 1976, which requires employers to provide a private room or space, other than a bathroom, for employees to express breast milk. The law previously only required employers to provide employees the use of a space, other than a toilet stall, to express breast milk.

Restrictions on Non-Solicitation Clauses

In November, a California court held that non-solicitation provisions contained in employment contracts are likely void as a matter of law. Read our blog [insert blog] post about the AMN Healthcare case which found that employment contracts prohibiting former employees from soliciting other employees within one year following their termination were unenforceable.

Updates to Sexual Harassment Laws in Other States

New York

Sexual Harassment Training: New guidance in New York now requires every employer in New York state, regardless of size, must adopt a sexual harassment policy and provide sexual harassment prevention training. Employers must provide the training to every employee annually.

Secret Settlements: Another law in New York mandates that employers can no longer include non-disclosure or confidentiality provisions related to the facts surrounding a sexual harassment claim in their settlement agreements.

Delaware 

Under House Bill 360, effective January 1, 2019, every Delaware employer with 50 or more employees must provide sexual harassment training to all supervisory and non-supervisory employees.

Washington, Tennessee, Vermont and Maryland

Employers in Washington (S.B. 5996), Tennessee (H.B. 2613), Vermont (H. 707), and Maryland (H.B. 1596) may not require employees to sign a nondisclosure agreement, waiver, or other document preventing them from disclosing sexual harassment which occurred at the workplace.

Don't hesitate to contact an MLG attorney today if you need sexual harassment training. It may also be wise to have an MLG attorney review and update your employment policies, including severance and settlement agreements, following these new developments to ensure they are legally compliant.

Author: Kymberly LeGolvan, Associate.

The Maier Law Group helps companies ensure that their policies and practices comply with the relevant workplace regulations.  Please contact us at info@maierlawgroup.com for more information.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.