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.

The California Department of Fair Employment and Housing (“DFEH”) recently updated its Sexual Harassment Prevention Training FAQ guidance to address some of the questions surrounding SB 1343, which requires employers with five or more employees to provide classroom or “other interactive training” for all California employees (not just supervisors) every two years. SB 1343 was initially set to go into effect on January 1, 2020. But in 2019, Governor Newsom signed two amendments to SB 1343 that push the effective date out to January 1, 2021. The deadline to comply with SB 1343 does not change the obligation of an employer with 50 or more employees to train new supervisory employees within six months of their promotion or hire.

The #MeToo movement has placed sexual harassment on the front pages of newspapers, has galvanized some states to reconsider their own sexual harassment laws, and has encouraged employers to take a closer look at their policies and procedures.

With such heightened awareness of sexual harassment, employers may feel an inclination to resolve doubts in favor of the accuser.  A recent Second Circuit decision, however, illustrates a counterweight to this outlook.

Yesterday, Governor Cuomo signed the last of several bills that massively overhauls New York State’s discrimination and harassment laws.  The changes, some of which are effective immediately, are explained in more detail here.

The main takeaways are as follows:

New legislation requires that New York employers provide annual, interactive anti-harassment training.  What does this mean for your business?  Hint: that training video you’ve been showing to new employees for years is no longer sufficient.  Failing to provide the training could result in hefty penalties.    

 Partners J.R. England and Ryan Bates discuss “Things You Need to Know in 5 Minutes or Less” here.

Today, New York City’s anti-sexual harassment training law goes into effect. Under the new law, private employers must provide annual “interactive” sexual harassment training to their entire workforce, including some independent contractors and part-time employees. The NYC law is similar—but not identical—to a recently enacted New York state law mandating sexual harassment training.

In the wake of the #MeToo movement, the EEOC reconvened its task force on sexual harassment in June 2018.  Most recently, in a continued effort  to focus on leading harassment prevention efforts, the EEOC organized the “Industry Leaders Roundtable Discussion on Harassment Prevention.” On March 20, 2019, the EEOC held a roundtable discussion with various industry leaders to strategize regarding effective harassment prevention efforts and to “inform strategies for the next generation of issues flowing” from the EEOC’s task force reports and the #MeToo movement. Top tier representatives from national associations of homebuilders, manufacturers, human resources, retailers, hospitality providers and others attended and offered their perspectives.

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.

In the wake of the #MeToo movement, many state legislatures have begun to take action to provide greater protections for victims of sexual harassment and make it easier for them to make complaints in the workplace.  For example, in California, AB 2770 amends Civil Code Section 47 to protect alleged victims of sexual harassment by a co-worker in making complaints to the employer without the fear of being found liable for defaming the alleged harasser.  It similarly protects employers when making statements to interested parties (such as the Department of Fair Employment and Housing and/or Equal Employment Opportunity Commission) concerning the complaints of sexual harassment.  In both instances, however, the statements and/or complaints are only protected from liability for defamation if they are made without malice and based upon credible evidence.

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.

Employers who operate in New York State and City are likely aware of the new sexual harassment laws that are starting to take effect.  Many companies have already revised their sexual harassment policies to comply with the new laws, but now face the hurdle of complying with the sexual harassment training requirements under both the State and City laws.

While there is overlap between the State and City requirements, there are differences that employers should note.

The #MeToo movement has galvanized many into taking action to fight workplace harassment. Since the movement began in the fall of last year, the Equal Employment Opportunity Commission (EEOC)—tasked with enforcing laws prohibiting sexual harassment—has indicated it has seen an uptick in the amount of traffic to its website. But, it also indicated this increase in website visitors has not translated into an increase in formal complaints to the EEOC filed by employees against their employers. Still, the EEOC has carried the torch of the #MeToo movement, signaling that the lack of an increase in claims will not stop the agency from vigorously enforcing anti-harassment laws.

Legislative responses to the #metoo movement continue to develop across the country.   Joining this movement, New York State and New York City recently have passed some of the strongest anti-harassment laws on the books.  Below is a summary of key elements for private employers: 

On February 5, 2018, the American Bar Association (ABA) adopted Resolution 302, which “urges all employers, and specifically all employers in the legal profession, to adopt and enforce policies and procedures that prohibit, prevent, and promptly redress harassment and retaliation based on sex, gender, gender identity, sexual orientation, and the intersectionality of sex with race and/or ethnicity.”

Resolution 302 was unanimously passed by voice vote of the ABA’s House of Delegates, the 601-member governing body of the country’s largest legal association, after further edits by employment lawyer Mark Schickman to strengthen its language.

In the #MeToo era, Resolution 302 is a reminder to all employers of harassment policy best practices, and should be of particular interest to employers in the legal industry.

Driven by the wave of publicity surrounding sexual harassment allegations against prominent artists, executives, news anchors, filmmakers and legislators, and the ensuing #MeToo movement, legislators in California and several other states recently have introduced bills designed to prevent such harassment.  Below we summarize four bills introduced in the California Senate and Assembly in January 2018.  Employer groups have not yet publicly mounted a challenge to any of these bills, and it is not possible to say which, if any, of these bills will move all the way through the legislative process and be signed into law by the Governor.