Hunton Employment & Labor Perspectives

Governor Newsom has signed SB 331 (the “Silenced No More Act”) into law.  As discussed in our prior blog post, SB 331 will expand the existing restrictions on the confidentiality provisions recently put into place by SB 820 (which restricts the usage of confidentiality provisions in agreements related to sexual assault, harassment, or harassment) to also restrict the usage of confidentiality provisions related to all claims of harassment, discrimination, or retaliation under the FEHA.

Three bills currently pending in the California legislature aim to codify presumptions for workers compensation purposes about the work-relatedness of COVID-19. Governor Newsom first addressed this issue in his May 6, 2020 Executive Order No. N-62-20 (“EO 62-20”), which expired on July 5, 2020.  That Executive Order created a rebuttable presumption that any “COVID-19-related illness” arose out of and in the course of the employment for workers compensation purposes, as long as the positive test or diagnosis came within fourteen days of the employee having worked, at an employer’s direction, in a workplace that was not the employee’s home or residence. The “COVID-19-related illness” (which term was undefined) must have been diagnosed by a licensed California physician, and confirmed by testing within thirty days of the diagnosis. EO 62-20 was not limited to first responders, health care workers or other essential workers, but applied broadly to all employees in the state. The broad scope of EO 62-20 may have been justified by its timing; it issued during a “shelter at home” period when it was easier to identify the dates of outside-the-home work.

What are newly elected Governor Gavin Newsom’s views on #MeToo legislation, and how do they compare to those of his predecessor, Jerry Brown?  We may soon have answers to these questions thanks to a pair of bills introduced by Assemblywoman Lorena Gonzalez (D-San Diego), which reintroduce harassment-related proposals vetoed by Governor Brown.

California’s legislature and courts have acted to curb an employer’s ability to recover its fees and costs when it prevails in a lawsuit brought under California’s Fair Employment and Housing Act (“FEHA”, Government Code § 12940 et seq.), even if the plaintiff employee rejected the employer’s Code of Civil Procedure Section 998 offer to compromise.

Sexual harassment is a recurring theme in the bills signed into law by California Governor Jerry Brown on September 30, 2018.  These new laws, which take effect on January 1, 2019, continue the trend of expanding protections for California employees.

 Hush-Money – Three of the bills signed by Governor Brown on September 30 target settlement agreements that prohibit disclosure of sexual harassment claims. AB 3109 makes void and unenforceable any provision in a contract or settlement agreement that waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.  SB 820 prohibits settlement agreements from including a provision that prevents the disclosure of factual information related to claims of sexual assault and sexual harassment.  However, this bill does not prohibit confidentiality of the settlement amount.  SB 1300 voids any agreement in which an employee forfeits his or her right to disclose unlawful acts in the workplace, including acts of sexual harassment.

Redefining The Hostile Work Environment Standard – SB 1300 also declares that a single incident of harassing conduct could be sufficient to create a triable issue regarding the existence of a hostile work environment in certain circumstances.