California Anti-Harassment Laws Prompt Employee Handbook Updates

This is the first in a three-part series of articles on employee handbook updates. This article reviews changes to California law. The second part will discuss federal and state workplace compliance trends, and the third part will focus on global handbook policies.

California employers are likely familiar with expanded sexual-harassment-prevention training requirements that took effect this year. They should also be aware of additional anti-harassment legislation and update their handbooks accordingly.

Employers can no longer enter into nondisclosure agreements involving claims of sexual assault, sexual harassment or sex discrimination; are required to significantly increase sexual-harassment-prevention training initiatives; and are restricted from entering into certain settlement agreements related to harassment and discrimination claims, noted Benjamin Ebbink, an attorney with Fisher Phillips in Sacramento.

Here are some of the key changes to California's anti-harassment laws that will likely require employers to adjust their policies and practices.

Nondisclosure Agreements

One of the more high-profile targets of the #MeToo movement has been the use of non-disclosure agreements in cases involving sexual harassment, Ebbink said. Under SB 820, employers may no longer use settlement agreements to prevent employees from disclosing factual information related to certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex if the worker has filed a civil or administrative action.

The new law appears to not apply to clauses used in settlements that occur in the pre-litigation phase before an official claim has been filed with an administrative agency or in court, Ebbink added.

The new law applies to settlement agreements that are entered into on or after Jan. 1, 2019. Although certain secret agreements will be unlawful, claimants may request that their identity, as well as all facts that could lead to the discovery of their identity, be shielded, said Margaret Grover, an attorney with Wendel Rosen in Oakland.

Expanded Harassment Definition

SB 1300 broadened the legal definition of harassment as well as the employer's obligation to prevent it. For instance, a single incident of harassment is now sufficient to bring a hostile-work-environment claim if the conduct unreasonably interfered with the worker's performance or created an intimidating, hostile or offensive working environment.

Prior to SB 1300, the Fair Employment and Housing Act (FEHA) already made employers potentially liable for a nonemployee's sexual harassment of an employee, intern, applicant or contactor. The bill expanded an employer's potential liability for a nonemployee's harassment to include conduct based on any FEHA protected characteristics, such as race and national origin. Harassment-prevention and equal employment opportunity policies in handbooks should reflect these changes, said Gina Roccanova, an attorney with Meyers Nave in Oakland.

Release of Claims

Under SB 1300, employers can't require workers to sign a release of harassment claims or refrain from discussing harassment as a condition of employment or in exchange for a raise or bonus. However, this new provision does not affect lawsuit settlements, Grover noted.

Truthful References

California employers may want to update their reference policies in light of AB 2770, which protects workers and employers from defamation lawsuits brought by alleged harassers, Roccanova said.

Under the new law, employers may tell a prospective employer whether a former employee is ineligible for rehire because he or she was found to have engaged in harassment.

Complaint Procedures

AB 2770 also allows employers to share information about harassment complaints with the worker who complained about harassment and other interested parties, such as witnesses and victims.

This change is expected to help employers keep complainants informed about the status of their complaints, Roccanova said. "Employers may want to consider tweaking their complaint procedures to reflect this new leeway, while still cautioning potential complainants that there are limits on the information that can be shared."

Harassment Training

California employers with at least five employees—including temporary and seasonal workers—must provide two hours of sexual-harassment-prevention training for supervisors and one hour for all other employees every two years (or within six months for a new hire or a worker who is promoted to a supervisory position). The initial training must be completed by Jan. 1, 2020.

[SHRM members-only toolkit: Complying with California Sexual Harassment Training Requirements]

The California Department of Fair Employment and Housing (DFEH) recently released answers to frequently asked questions to clear up some ambiguities in the new law. "The law requires that employees be trained during calendar year 2019," according to DFEH. "Employees who were trained in 2018 or before will need to be retrained."

The DFEH expects to make online training courses available by late 2019.

Policy Tips

When updating handbook policies on sexual-harassment prevention, Grover said, policies should explain that:

• Harassment creates a hostile, offensive and oppressive work environment and deprives victims of their statutory right to work in a place that's free of discrimination.
  
• Harassment may exist even if the employee's productivity has not declined as a result of the harassment.
  
• A single incident of harassing conduct may constitute harassment, and a hostile-work-environment claim will be viewed in light of all relevant circumstances.
  

"Cultural forces are at least as significant as legal changes in prompting re-examination of employment policies," Roccanova noted. For instance, the heightened awareness spurred by the #MeToo movement is prompting employers to reassess their approaches to risk management, employee training and reporting procedures, she said. 

[Visit SHRM's resource page on workplace harassment.]