The Lowdown: Employer Risk in California and Beyond

August 21, 2019

Newly released this week on Research & Trends, “Risky Business – Employment Practice Litigation on the Rise” offers insights into the many predicaments your business prospects and clients could find themselves in as employers in an increasingly litigious environment. As this Worldwide Facilities sponsored whitepaper notes, employers “cannot go without the protection needed to respond to employment practices claims such as allegations of sexual harassment, discrimination, and retaliation…” Unfortunately, the list is much longer and evolving state and federal legislation could bring about greater risk to employers that are not keeping up with the changes.

In addition to authoring the whitepaper, Worldwide Facilities own Robert Skaggs, Assistant Vice President, offers the following insights into the changing environment in California.

Employment Law Changes that are Impacting California Employers

By Robert Skaggs, Assistant Vice President, Worldwide Facilities

Earlier this year, employers in California saw significant changes in employment laws. Many updates that were passed in 2018 are now in effect, along with others that will begin to impact businesses in 2020 and beyond. While not an all-inclusive list, the following update can help your California business clients understand what they should know about changes in employment practices liability laws to better mitigate potential claims situations.

Sexual Harassment Workplace Training and Workplace Harassment Claims

Two bills that are dramatically changing the requirements for workplace sexual harassment prevention training and altering the relationship between employers and workers are Senate Bill 1300 and SB 1343.

Due largely in part to the #MeToo Movement, SB 1343 will force many employers to overhaul their current training protocols and require implementing training by Jan. 1, 2020. The bill amends California Government Code Section 12950.1 and will require:

  • Employers with five or more employees to provide sexual harassment prevention training to all employees — including those in non-supervisory positions.
  • Employees to undergo training within six months of starting work, with seasonal or temporary employees to undergo training within 30 days or 100 hours, whichever comes first.

To meet compliance requirements, training must include:

  • Harassment prevention training for supervisors every two years.
  • A written anti-harassment policy that includes a complaint procedure and doesn’t require an employee to complain directly to his or her immediate supervisor.
  • Steps for supervisors to follow when reporting complaints of misconduct to a designated company representative, such as a human resources manager.
  • Specific training topics as outlined by the new laws.
  • The distribution of the pamphlet Sexual Harassment Is Forbidden by Law (DFEH-185) to all employees.

For a complete list of new training requirements, visit the California Employment Law Report.

SB 1300 is a sweeping harassment bill that applies to all California employers — regardless of how many employees they have or how large or small the business is — and makes numerous changes to California’s Fair Employment and Housing Act relating to workplace harassment claims.

Simply put, the bill prohibits an employer from requiring an employee, in exchange for a raise or bonus or as a condition of employment or continued employment, to agree not to sue or to bring a claim against the employer under FEHA or to sign a non-disparagement agreement preventing the employee from disclosing information about unlawful acts in the workplace. The bill also expands employer liability for unlawful harassment by non-employees and prohibits a prevailing defendant from being awarded attorney’s fees and costs unless specific factors are proven. Additionally, the bill states that it will allow a single incident of harassing conduct as sufficient grounds for creating a triable issue of hostile work environment if the conduct interfered with a plaintiff’s work performance or created an intimidating, hostile or offensive work environment.

Regarding sexual harassment claims, Assembly Bill 1619 has increased the statute of limitations for a civil sexual assault claim to up to 10 years after the alleged assault or three years after the victim discovered the injury, whichever is later.

Protection Against Defamation Claims

AB 2770 modifies Civil Code Section 47 to add protections for harassment victims who make complaints and for employers who make statements to interested parties regarding alleged harassment. The new statute amends California Civil Code Section 47, which designates certain communications as “privileged,” meaning that individuals cannot be liable for defamation (including libel and slander) based on those communications. AB 2770 also expands that protection to include whether a decision not to rehire is based upon the employer’s determination that the employee engaged in sexual harassment.

Requirement that Corporate Boards Include Women

SB 826 Section 301.3 requires that all publicly held California companies have at least one woman on their board of directors by the end of 2019 and, by the end of 2021, a minimum of two female directors if there are five directors and three female directors if there are six or more directors. Significant fines will be issued for noncompliance.

Lactation Accommodations

Two bills are expanding lactation accommodations. AB 1976 requires employers to make reasonable efforts to provide a room or location (but not a bathroom) for lactation purposes. SB 937 would require employers to provide a lactation room near the employee’s work space, with prescribed features and access to a sink and refrigeration; to develop and distribute a lactation accommodation policy; and to maintain accommodation request records for three years.

Restrictions on Criminal History Inquiries

SB 1412 amends Section 432.7 (the labor code that limits an employer’s access to an applicant’s or an employee’s criminal history or use of an individual’s criminal history information when making an employment decision) to require employers to consider only a “particular conviction” (as defined by the bill) relevant to the job when screening applicants by using a criminal background check.

Changes in Paid Family Leave

In January 2021, SB 1123 will expand California’s existing paid family leave program to employees who request time off related to their own active duty military service or that of close family members. The bill expands the Family Temporary Disability Insurance Program to include time off to attend to a “qualifying exigency” related to an individual’s spouse, registered domestic partner, parent, or child who is an active duty member of the U.S. armed forces. Qualifying needs can include addressing any issue that arises from a call or order; attendance in an official ceremony, program, or event sponsored by the military that is related to the covered active duty; or arranging for alternative child care for a child when the active duty or call to active duty necessitates a change in the existing child care arrangement.

These are just a few changes in California employment laws. Employers are urged to audit current policies, procedures, and practices and make required changes to ensure they are in compliance.

Whether in California or beyond, grab a copy of Robert Skaggs’ whitepaper for the top trends that are driving employment practices liability claims, available on Research & Trends, “Risky Business: Employment Practice Litigation on the Rise” sponsored by Worldwide Facilities.

We thank Robert Skaggs for allowing us to share his work on The Lowdown blog this week.

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