Governor Brown has been very busy this month signing multiple employment-related laws that go into effect on January 1, 2019. Here is a summary of key new laws and what they mean for your Work Community™.
1. Paid Family Leave: Waiting Time for Benefits Is Eliminated, and the Benefits Are Expanded. Employees no longer need to wait seven (7) days before they are eligible for Family Temporary Disability Insurance (Paid Family Leave) benefits. Remember: FTDI or Paid Family Leave (PFL) is a wage supplement, not a leave entitlement. Also, benefits are now available during time off granted to attend to critical needs arising as a result of a spouse, domestic partner, parent or child's deployment overseas as a member of the Armed Forces.
2. Certain Communications About Sexual Harassment Cannot Be Used To Prove Alleged Defamation. Effective January 1, 2019, the following communication are "privileged" and may not be used to as the basis for a defamation complaint: (1) reports of sexual harassment made by an employee to the employer based on credible evidence and without malice (this is a shift from the "claims made in good faith" requirement we usually include in harassment policies); (2) communications between the employer and interested persons (e.g., witnesses or victims) made without malice about allegations of sexual harassment; and (3) statements made without malice to prospective employers about whether a decision to rehire would be based on a determination that the former employee engaged in sexual harassment (which may impact information you share during reference checks).
3. Clarification of Arbitration Enforcement. Currently, California law states that a court may not enforce an arbitration agreement if grounds for revocation exist. That law has been amended to clarify that a court may not enforce an arbitration agreement if grounds exist for rescission of the agreement. This change was made to avoid ambiguity. Only an offer can be revoked. Once a contract is formed, it can only be undone by rescission. The change avoids situations where a court may uphold an arbitration agreement where there are grounds for rescission but not for revocation. Remember: the laws on arbitration agreements are constantly in flux, so call us for the latest developments if you are contemplating adding mandatory arbitration or if you want to be sure your arbitration agreements are enforceable.
4. Big Changes to Confidentiality Provisions in Settlement Agreements for Sexual Assault, Discrimination or Harassment. The Stand Together Against Non-Disclosure Act (STAND) prohibits provisions in settlement agreements that prevent the disclosure of factual information related to cases involving sexual assault, sexual harassment, sex discrimination and failure to prevent sex-based harassment and discrimination. This law does not prohibit confidentiality provisions that prevent disclosure of the amount paid in settlement of a claim. This law creates a stand-alone cause of action for failure to comply. This is a meaningful change, and your severance agreements going forward will need to reflect this change.
5. Changes to California's Laws on Discrimination and Harassment, and Training on the Same. California employers with 5 or more employees are covered by the discrimination laws outlined in the Fair Employment and Housing Act (FEHA). Effective January 1, 2019, FEHA is amended to include several new protections for employees:
- Employers may be responsible for any type of unlawful harassment (not just sexual harassment) by nonemployees against employees or other nonemployees (like interns or volunteers).
- Employers are prohibited from requiring a release of claims or rights under FEHA, or a nondisclosure agreement or other agreement not to disclose unlawful acts in the workplace, in exchange for a raise or a bonus or as a condition of employment or continued employment.
- A single incident of harassing conduct is now sufficient to create a triable issue of hostile work environment if the conduct interfered with a plaintiff's work performance or otherwise created an intimidating, hostile, or offensive work environment. Time to train your managers!
- A sexual harassment plaintiff is not required to prove that his or her tangible productivity has declined as a result of the harassment. Instead, it will be sufficient if the plaintiff proves that a reasonable person subjected to the discriminatory conduct would find that the harassment altered working conditions so as to make it more difficult to work.
- Any discriminatory remark, even if not made in the context of an employment decision, and even if uttered by a non-decisionmaker, may be evidence of discrimination.
- The legal standard for sexual harassment does not vary by type of workplace. Courts can no longer consider the nature of the workplace unless engaging or witnessing "prurient conduct and commentary" is an integral part of the employee's job duties.
- Employers are encouraged (but not required) to provide bystander intervention training.
- A prevailing employer will not be entitled to an award of fees and costs unless the court determines the action was "frivolous, unreasonable, or totally without foundation." This is a higher standard than previously was applied, making it harder for a successful defendant to recover fees.
6. And on the Subject of Harassment Training: New Requirements. Under current law, employers with 50 or more employees must provide at least two (2) hours of sexual harassment prevention training to supervisory employees. Effective January 1, 2019, smaller employers—those with five (5) or more employees—must provide sexual harassment prevention training to supervisors by January 1, 2020. In addition, employers with five (5) or more employees must provide at least one (1) hour of training to non-supervisory employees by January 1, 2020. The training must be interactive and delivered every two (2) years. Both supervisory and nonsupervisory employees must be trained within six (6) months of hire or placement into their positions. Seasonal or temporary employees (or any employees that will be employed fewer than six months) must undergo training within 30 days or 100 hours worked, whichever comes first. The DFEH is required to create online training modules that employees can take to fulfill the new requirements.
These changes in the law may mean meaningful modification to your policies, agreements, training and practices. We are happy to help. Let us know here if you would like our help to implement changes to your policies and practices, to help you improve communication in your work community and reduce the risk of litigation, 619-906-2400.