UPDATED – New Legislation Will Impact Litigation of FEHA Claims, Employer-Employee Agreements, and Necessitate Additional Employer Training

By Guest Author on October 15, 2018

This post was authored by Geoffrey S. Sheldon & Andrew Pramschufer

EDITOR’S NOTE: This article has been revised from its original version that was published on October 1, 2018. The original version noted, among other things, that SB1300 amended the Fair Employment Housing Act (FEHA) to extend personal liability to an employee alleged to have engaged in unlawful retaliation in the workplace. While there was bill language in SB1300 to amend FEHA to extend personal liability to retaliation claims, such language was contingent upon another bill being signed into law, which DID NOT occur. As a result, the provision of SB 1300 which would have extended personal liability to FEHA retaliation claims WILL NOT become law and is inoperative. We apologize for the error and welcome any questions you may have on this bill.

In response to the “#Me Too” movement, the California Legislature passed a number of bills intended to protect employees from workplace harassment and discrimination under the Fair Employment and Housing Act (FEHA). On September 30, 2018, Governor Jerry Brown signed these bills into law. The impacts of these new laws, which go into effect on January 1, 2019, are summarized below.

Impact on Harassment Claims under FEHA

Senate Bill 1300 (SB 1300) creates a new section under FEHA (Government Code Section 12923), which mandates the following:

The “severe or pervasive” legal standard is rejected, so that a single incident of harassing conduct is now sufficient to create a triable issue of fact regarding the existence of a hostile work environment;
A plaintiff no longer needs to prove his or her “tangible productivity” declined as a result of harassment in a workplace harassment suit, and may instead show a “reasonable person” subject to the alleged discriminatory conduct would find the harassment altered working conditions so as to make it more difficult to work;
Any discriminatory remark, even if made by a non-decisionmaker or not made directly in the context of an employment decision, may be relevant (i.e., admissible) evidence of discrimination in a FEHA claim; and
The legal standard for sexual harassment will not vary by type of workplace, and courts will therefore only consider the nature of the workplace in a harassment claim when “engaging in or witnessing prurient conduct or commentary” is integral to the performance of an employee’s job duties.

Finally, SB 1300 limits a prevailing employer’s ability to recover attorney and expert witness fees unless a court finds a plaintiff’s action was “frivolous, unreasonable, or totally without foundation.”

In practice, these changes to the FEHA will make it much easier for plaintiffs to file, litigate and win harassment and discrimination claims against California employers. Getting these types of claims dismissed prior to trial will, beginning January 1, 2019, be much more difficult. As Government Code Section 12923 now explicitly states, “[h]arassment cases are rarely appropriate for disposition on summary judgment.”

Accordingly, it is vital that employers take effective corrective action immediately when claims of harassment and/or discrimination arise. Employers should also review their harassment and discrimination policies to ensure they are compliant with these changes to the FEHA.

Impact on Agreements between Employer and Employee

SB 1300 prohibits an employer from requiring that an employee sign a nondisparagement agreement, confidentiality agreement, or any other document denying the employee the right to disclose information about unlawful acts in the workplace, including sexual harassment. SB 1300 also makes it unlawful for an employer to require an employee waive FEHA rights or claims in exchange for a raise or bonus or as a condition of employment unless the release is a voluntary negotiated settlement agreement filed by an employee in court or an alternative dispute resolution forum, before an administrative agency, or through an employer’s internal complaint process.

Senate Bill 820 (SB 820) prohibits confidentiality clauses in settlement agreements if they would limit the disclosure of factual information related to sexual assault, sexual harassment, or workplace harassment or discrimination based on sex.

Assembly Bill 3109 (AB 3109) prohibits a contract or settlement agreement entered into on or after January 1, 2019 from limiting a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment on the part of the other party to the contract where the party has been required or requested to attend the proceeding.

Employers should note these restrictions on the use of certain clauses in employment contracts, settlement agreements, and other agreements between employers and employees. An employer’s failure to comply with these restrictions will result in a finding that certain provisions of the written agreement are contrary to public policy and unenforceable, potentially leaving an employer open to liability.

Impact on Employer Trainings

Senate Bill 1343 (SB 1343) requires employers with five or more employees to provide two hours of sexual harassment trainings tosupervisory employees, and at least one hour of sexual harassment training to nonsupervisory employees by January 1, 2020. This is a marked change from current law, which does not require such trainings for nonsupervisory employees and only required employers with 50 or more employees to provide sexual harassment training to supervisory employees. Also beginning January 1, 2020, an employer must provide sexual harassment trainings to all seasonal employees, temporary employees, and any employee hired to work for less than six months within 30 calendar days or within 100 hours worked, whichever comes first.

SB 1300 allows, but does not require, an employer to provide “bystander intervention training” to enable bystanders to identify problematic behaviors in the workplace, including sexual harassment, and intervene as appropriate.

SB 1343 mandates that the DFEH create two online trainings courses—one supervisory, and one nonsupervisory—to be made available on its website so employers may comply with new sexual harassment training requirements. Employers may look to these offered trainings courses to ensure compliance with these new laws.

Employers should review all training materials and procedures to ensure they are satisfying not only their existing obligations, but also all new requirements established by these new bills.

Effects on Existing Litigation

We expect these legislative changes will have significant impact on existing litigation once they go into effect on January 1, 2019. Please consult with legal counsel about these new laws and their anticipated effects.