Me Too Goes Forward for Sexual Harassment Prevention

In the summer of 2017, journalist Ronan Farrow published an published an article in the New Yorker magazine regarding sexual harassment allegations regarding movie mogul Harvey Weinstein. That article and subsequent others launched an entire movement of women – and men – who had been sexually harassed. Celebrities told their stories about harassment in the “industry” and then people in corporations and government told theirs. Known as the “Me Too” movement, these stories and accusations caused the downfall of many corporate, government, and celebrity entities, including Harvey Weinstein, Kevin Spacey, U S Senator Al Franken, CBS CEO Leslie Moonves.

California is considered a progressive state, and has anti-sexual harassment laws on the books for many years, and with the advent of the “Me Too” movement, those laws have been updated to prevent more potential harassment situations. Beginning on January 1, 2019, the laws are updated to include:

Harassment Training Requirements: California’s Fair Employment and Housing Act (FEHA) SB 1300, has mandated that employers with 50 or more employees must provide their supervisors with harassment prevention training every other year. The new law expands this requirement with employers with five or more employees. These supervisors must receive a minimum of two hours of training by January 1, 2020. The new law also requires employees themselves receive a minimum of one hour of training during the same period.

Expansion of Liability for Harassment: Employers are responsible for providing a harassment-free workplace for their employees when a non-employee is the harasser; such as an independent contractor, customers, consultant, vendor, or delivery person. In the past, employers were responsible for nonemployees’ sexual harassment. This bill expands this responsibility to include all forms of prohibited harassment (including harassment based on race, national origin, sexual orientation, age, or disability).

Employment References for Harassers: This law addresses the problems employers face when providing employment references or answering questions as to whether they would rehire a former employee when that employee engaged in harassment (and likely was terminated as a result). Employers are cautious in providing such information because of the risk of a defamation claim from the former employee. The new law allows employers to “inform a former employee’s prospective employer about whether a decision to terminate or not rehire that individual was based upon the employer’s determination that the former employee engaged in sexual harassment.” Please note, employers can still face potential liability if their statements were made with malice.

Limitations on Confidential Agreements (so called Non-Disclosure Agreements – NDAs): The law up until December 31, 2018 prohibited settlement agreements from including non-disclosure provisions regarding resolutions of civil actions for specific sexual offenses. “… resolutions of civil actions or complaints filed with government agencies regarding various forms of sexual harassment or discrimination and any claims for sexual assault not already covered by the law. However, plaintiffs retain the right to request provisions that shield their identity.”

To ensure compliance with the law, employers should hire a competent attorney; and employees who have been (or believe they have been harassed) should contact legal representation as well.

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