The onslaught of new laws on the books regarding sexual harassment is undoubtedly a result of the recent high profile celebrity sexual harassment scandals. The most important things you can do as an employer to protect your employees from sexual harassment and yourself from sexual harassment lawsuits are:

1. Update your employee manual to reflect your current policies, practices and new California and federal laws. Don’t put this off. If you need help, contact us! 
2. Train your managers and supervisors. Include mandatory sexual harassment and anti-bullying training and provide relevant real-life scenarios. Currently, every employer with 50 or more employees must conduct a minimum of two (2) hours of sexual harassment training and anti-bullying training every two (2) years. If you have less than 50 employees and more than 5… consider sexual harassment training a practice run for 2020 when sexual harassment training becomes mandatory.
3. Get early legal advice on any “budding employee problems” rather than waiting until you are served with a lawsuit. Valid and reckless claims of sexual harassment by men and women destroys careers.
4. Review your Employment Practices Liability Insurance to make sure you have enough coverage. If you don’t have enough coverage or you don’t have it at all, contact us.

Now that we have that out of the way, here’s why you need to be proactive.
Experts agree that sexual harassment claims will increase significantly in 2019. It could happen to you. The following new laws affect us all — they give new protections and new liabilities for employers.

AB 2770 – Protecting employers and victims from defamation claims by alleged sexual harassers (effective Jan. 1, 2019)

Under existing law, an employer may inform a prospective employer whether or not the employer would rehire an employee as long as the information is communicated without malice. It is considered privileged information and protected from a lawsuit for defamation. AB 2770 (Section 47 of the Civil Code) adds communications specific to sexual harassment to privileged communications to protect the employer from future defamation suits by the harasser:

• Complaints of sexual harassment by an employee – without malice – to an employer based on credible evidence
• Communications between the employer and interested persons – without malice – regarding a complaint of sexual harassment
• Communications by the employer  – without malice – whether the employer’s decision to not rehire the employee is based on the employer’s decision to not rehire the employee due to the employer’s determination that the former employee engaged in sexual harassment

Please note: The law does not define the term “credible evidence” and it is limited to communications specifically related to sexual harassment. It does not include communications regarding other kinds of prohibited harassment such as race, age or disability. 

AB 3109 –  Right of petition or free speech in sexual harassment actions (effective Jan. 1, 2019)

AB 3109 voids any language in contracts or settlement agreements which would prevent anyone from testifying in administrative, legislative or judicial proceedings concerning alleged criminal conduct or sexual harassment.

SB 820 – Settlement agreements and confidentiality (effective Jan. 1, 2019)

Senate Bill (SB) 820 prohibits non-disclosure provisions in settlement agreements related to civil or administrative complaints of sexual assault, sexual harassment, and workplace harassment or discrimination based on sex. This bill includes allowances for:

• Provisions to prevent the disclosure of the amount paid in settlement
• Provisions for the protection for the claimant’s identity and any fact that could reveal the identity, so long as the claimant has requested anonymity and the opposing party is not a government agency or public official.

SB 1300 – Lowers the burden of proof to establish harassment (effective Jan. 1, 2019)
Under the Fair Employment and Housing Act (FEHA), employers may be responsible for the acts of non employees when it concerns sexual harassment of employees, unpaid interns, volunteers and even applicants if the employer, or their agents, managers, supervisors knew of the wrongful action and did not take immediate and corrective action. SB 1300 expands the employer’s responsibility to include other prohibited harassment such as race, age, disability, religious creed, color, national origin and ancestry. It also outlines what constitutes “severe or pervasive” conduct that rises to the level of unlawful harassment and rejects the “stray remark” doctrine that previously required more than one offensive remark to succeed on a claim. The bill limits the right of employers to secure attorneys’ fees and costs from employees who file frivolous claims against employers.

This bill also prohibits employers, in exchange for a raise or bonus, or as a condition of employment, from:

• Requiring the execution of a release of a claim or right under FEHA
• Requiring an employee to sign a non-disparagement agreement or other document that denies the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to sexual harassment

SB 1343 – Increased Sexual Harassment Training (effective Jan. 1, 2020)

By Jan. 1 2020, and once every two years thereafter, employers with five or more employees will be required to provide at least two hours of sexual harassment training to all supervisors and managers, and at least one hour of sexual harassment training to all non-supervisory employees. Don’t procrastinate, put a training plan in place now.

This list represents some of the new California laws regarding sexual harassment. There are many new labor laws, state and federal. You have a business to run and you can’t expect to know all the ins and outs of protecting your business — HR, Workers Comp, or other threats that may be on the horizon. Contact us to find out how to minimize your exposure to unnecessary financial loss and help manage your risk.