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Employment:  October 10, 2018

It’s Getting Cold Outside...for Employers.

As the leaves begin to fall and the weather turns colder, California employment law is becoming increasingly burdensome for employers as it relates to sexual harassment in the workplace. There is a chill in the air as it relates to some new bills just signed into law by Governor Jerry Brown.
 
Senate Bill 820 relates to what can or cannot be placed in a settlement agreement related to civil or administrative complaints of sexual assault, sexual harassment and workplace harassment or discrimination based on sex or retaliation claim based on reporting any such claims. In the past for example, an employer could negotiate a settlement to ensure that the factual information related to a claim would remain confidential. Not anymore. Beginning January 1, 2019, a settlement agreement cannot prohibit the disclosure of factual information and can protect the claimant’s identity as long as anonymity has been requested and the opposing party is not a government agency or public official. This new law does not prohibit a party from keeping the amount paid in settlement of a claim confidential.  
 
Senate Bill 1300 further expands liability of an employer under the Fair Employment and Housing Act (“FEHA”) effective January 1, 2019. FEHA aims to provide all with an equal opportunity to succeed in the workplace. Under FEHA, an employer can be responsible for the harassment of an employee by other employees, its agents, supervisors or others, if the employer knew or should have known of this conduct and fails to take immediate and appropriate corrective action. Under this new law, amongst other obligations, the burden of proof of what exactly constitutes “severe or pervasive” conduct that rises to actionable harassment now appears lower than before. The new law states that the “existence of a hostile work environment depends on the totality of the circumstances” and even one remark could subject an employer to liability. Knowing what is ok to say and what is not, is crucial.  
 
Senate Bill 1343: Current CA law requires all employers with 50 or more employees to provide 2 hours of sexual harassment training to supervisors within 6 months of their employment and then every 2 years. Now, by January 1, 2020, employers with 5 or more employees will be required to engage all supervisors in 2 hours of sexual harassment training and all nonsupervisory-employees, 1 hour of sexual harassment training, within 6 months of employment. The employer must provide the training in the language of the employee to ensure the entire workplace knows what, and how to prevent, sexual harassment in the workplace. This is in addition to other posting requirements and impacts even temporary or seasonal workers. This training is required once every 2 years and must include prevention of abuse and harassment based on gender.
 
The #MeToo movement is bringing to light issues related to harassment that you, as an employer, may not have known about before. Promptly addressing any issues that arise and putting in preventative policies in place to make sure your employees know that you take any sexual harassment seriously is a must in the current climate. Times up — contact the employment lawyers at Chauvel & Glatt to ensure your policies in place adhere to these new higher standards.
 
This material in this article, provided by Chauvel  & Glatt, is designed to provide informative and current information as of the date of the post. It should not be considered, nor is it intended to constitute, legal advice or promise similar outcomes.  For information on your particular circumstances, please contact Chauvel & Glatt at 650-573-9500.  (Photo credit: 123rf.com)

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