2018 – 2019 will be an extremely busy time frame for employers addressing new HR laws across the country, especially in California, New York State, and New York City. These new and amended laws are relevant to unlawful employment practices, sexual harassment, discrimination, and general harassment of employees, contractors, or any person during the course of conducting business, especially if the employer, agent(s) or supervisor(s), knew or should have known about the harassing conduct and failed to take immediate and appropriate corrective action.
Senate Bill 1300 (SB 1300)
In California particularly SB-1300, the Fair Employment and Housing Act (FEHA) amended the law in Assembly on August 20, 2018 to specify that an employer may be responsible for the acts of non-employees with respect to other harassment activity. Additionally, the bill would also authorizing an employer to provide “bystander” intervention training, as specified to their employees. A big change in this bill would require employers of 5 or more employees to provide 2 hours of sexual harassment training to all employees, not just supervisors and within 6 months of being hired. The training would then be conducted every 2 years thereafter; SB-1343 closely resembles all the nuances in SB-1300 but provides employers until 2020 to conduct the training. It also requires the California Department of Fair Employment and Housing (DFEH) to develop an online training, along with educational posters and other materials for employers available in multiple languages not just English and Spanish. Without argument, this SB-1300 will be the largest and most aggressive bills passed by the Assembly and by a narrow margin. Employers should carefully review all the components of this bill to ensure they are compliant.
Assembly Bill 1867 (AB 1867)
Another recently introduced bill in California, AB-1867 (needs signage from Governor Brown), will add Government Code section, 12950.5 with new and expanded time related to record keeping requirements. Any California employer of 50 or more employees will need to save any and all internal records of complaints that allege sexual harassment for 10 years after the initial complaint or until the harasser departs from employment of the company. The 10 years is defined as whichever date is later.
AB – 1867 will further define an employee complaint as a formal communication of harassment through the “internal complaint process,” which was already an amendment by FEHA back on April 1, 2016 and is detailed as what new regulations are required to be in California employers’ anti-discrimination and anti-harassment policies. But this depends if AB-1867 is actually signed into law by Governor Brown. All California employers should by now, have this internal complaint process in their current handbook policies and have properly and effectively communicated this process to all management and employees, with a signed acknowledgement as a HR – recommended best practice.
Assembly Bill 3080 (AB 3080)
California legislature passed AB-3080, which prohibits employers from entering into arbitration agreements with employees. It is uncertain whether the Governor will sign the bill into law. AB 3080 bars confidential agreements regarding harassment and prohibits arbitration agreements for wage and hour claims, discrimination, harassment, and retaliation. This bill should be thoroughly reviewed as it can impact many different types of persons in an employment agreement and its prohibitions.
Assembly Bill 3109 (AB 3109)
Additionally another bill on its way to Governor Brown’s desk is AB-3109, which very similar to the new, New York State and City laws, would prohibit and void any employment contract provisions that waive a party’s right to testify regarding alleged criminal conduct or sexual harassment committed by the other party. This would apply in all administrative, legislative or judicial proceedings.
Senate Bill 1300 (SB 1300)
On the Assembly floor currently and related to the above mentioned law, is a more comprehensive SB-1300 with (1) expanded liabilities to the employer’s potential liability, amended by FEHA, again especially if the employer knew the conduct was unwelcomed and failed to take any reasonable steps necessary to prevent the discrimination and harassment, (2) prohibits releases of claims under FEHA or nondisclosure agreements with attached exchanges for any bonuses, pay raises or conditions of continued or offers of employment and finally, (3) certain circumstances where fees and costs awarded to the defendant would be prohibited.
Assembly Bill 1870 (AB 1870)
Currently on the Senate floor in California is AB-1870, which would expand the time frame a complaint can be filed as an alleged administrative charge with the DFEH, regarding an unlawful employment practice against their employer, from 1 year to 3 years. Remember this time frame starts at the time the alleged incident occurred.
Assembly Bill 2079 (AB 2079)
AB-2079 affects employers registering as a janitorial business and expands their requirements for sexual harassment prevention compliance training, and in the Talent Agency industry, agencies would be required to not only provide educational materials on the prevention of sexual harassment but other areas to be covered relating to eating disorders, overall nutrition for the adult artist and any type of retaliation. All Talent Agencies would be subjected to record-keeping requirements of 3 years of any and all educational materials that were provided to the employed adult artist or a minor of certain age range, within 90 days of that retention.
Staying on Top of Ever-Changing New HR Laws
In California by the end of August 2018, no fewer than a dozen laws relating to sexual harassment have passed; by the deadline of September 30, 2018, Governor Brown will have reviewed and signed into law those bills he agrees with for California employers and employees in the labor and employment arena. Outside the sexual harassment bills, the doors have opened wide for laws to be released in other areas such as, gender diversity, express and sexual orientation and how people identify themselves regardless of their designated sex at birth. For employers, as of January 01, 2018 they should already have posted, if over 50 employees, the expanded definitions poster required in SB-396 by FEHA, if not, beware, you are in violation. For all employers, always check with your employment labor attorney to stay informed and on top of the always, ever-changing laws throughout the country, especially in this area of the law. Remember, sexual harassment, discrimination and retaliation are against the law and need to address immediately.