California Governor Jerry Brown recently signed Senate Bill 1300 into law. This new law amends the California Fair Employment and Housing Act in direct response to the #MeToo movement. While many of the provisions of this new law address legal issues (e.g. amending the standard for a §998 offer in a sexual harassment claim and providing “legislative guidance to the California courts relating to workplace harassment law), there are a few issues that impact employers and the workplace directly.
Release of Claims and Non-Disparagement Agreements
The first aspect of this law that directly impacts the employment relationship is the new limitations on releasing certain types of claims and on non-disparagement agreements. Under the new law, it will be unlawful for an employer to require an employee to sign a release of a FEHA claim “in exchange for a raise or bonus, or as a condition of employment or continued employment.” In addition, it will also be unlawful for an employer to require an employee to sign a non-disparagement agreement which denies the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
Expanding Employer Liability for Harassment
The new law also makes employers liable for third-party harassment [not just sexual harassment] if the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action. Previously, employers could only be held responsible for sexual harassment committed by nonemployees under this standard.
Optional “Bystander Intervention” Training
Finally, the new law suggests that employers provide “bystander intervention training” to employees in order to give employees the tools to know how to aid others and speak up about unlawful or problematic behaviors in the workplace. This training, should employers choose to provide it, should include information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training can also include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.
This new law goes into effect on January 1, 2019.