Understanding The Changes in California Employment Contracts Regarding Sexual Misconduct
Since the worldwide phenomenon of the #MeToo movement swept the nation last year, activists, supporters, and government officials have pressed for workplace reform. The California legislature has recently proposed several bills. If signed into law, these bills would limit settlement agreements. They would also ban contractual limits on arbitration agreements. The bills would ban waivers on the right to testify. In addition, they would greatly expand the standards and laws surrounding sexual harassment.
SB 820: For settlement agreements entered into on or after January 1, 2019, SB 820 would prohibit and void any provision that prevents disclosure of information. This includes information related to civil or administrative complaints of sexual assault, sexual harassment, and workplace harassment or discrimination based on sex.
AB 3080: For arbitration agreements entered into, modified, or extended on or after January 1, 2019, AB 3080 would forbid any business from requiring employees or job applicants not to disclose sexual harassment. This includes harassment they suffered, witnessed, or discovered in the workplace. Employers could not prevent employees from opposing unlawful practices. They could not stop employees from participating in harassment or discrimination investigations or proceedings. The bill also forbids requiring an employee to waive any right, forum, or proceeding for violations of the FEHA or Labor Code. This includes any requirement to “opt out” or take affirmative action to preserve such rights.
AB 3109: On or after January 1, 2019, this bill would void any provision that waives a party’s right to testify in a legal proceeding. This applies if the testimony is required or requested by court order, subpoena, or administrative or legislative request. The testimony must relate to criminal conduct or sexual harassment by the other contracting party or that party’s agents or employees.
SB 1300: This bill has several components, including:
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Prohibiting reliance on Brooks v. City of San Mateo to determine what conduct is sufficiently severe or pervasive to constitute actionable harassment.
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Rejecting language in Kelley v. Conco Companies that could support different standards for hostile work environment harassment depending on the type of workplace.
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Affirming Nazir v. United Airlines Inc.’s observation that hostile work environment cases involve issues “not determinable on paper.”
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Expanding an employer’s potential liability under the FEHA for acts of nonemployees to all harassment.
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Prohibiting employers from requiring employees to sign a release of FEHA claims or a document that prevents disclosure of unlawful acts in the workplace.
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Preventing a prevailing defendant from being awarded attorney’s fees and costs unless the court finds the action frivolous, unreasonable, or groundless.
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Authorizing employers to provide bystander intervention training to employees.
What is an Arbitration Agreement in Employment?
In employment, an arbitration agreement is a contract in which an employee gives up the right to sue the company in state or federal court. Instead, the employee must pursue claims through arbitration, privately outside of court. Arbitration does not involve a jury. A retired judge or attorney decides the verdict. Generally, neither party can appeal the arbitration decision. These factors can disadvantage an employee seeking justice.
Employers could still use arbitration under the bill. However, a third party must handle it. Employers cannot make arbitration a condition of employment or a benefit. Employees or victims retain the right to participate in investigations or other proceedings regarding harassment or discrimination. They can also sue in court if necessary.
What is a Nondisclosure Agreement in Employment?
In employment, a nondisclosure agreement (also called a confidentiality agreement) protects certain information between an employer and employee. Many businesses use these agreements to protect trade secrets. However, they often include sexual harassment and discrimination claims.
The new bills would ban employers from requiring nondisclosure agreements regarding sexual misconduct. Employers cannot use them as a condition of employment or benefits. This ensures complaints and reports are not kept secret within the company. Employees and victims can speak freely about their experiences.
Under the bill, nondisclosure agreements can still be used if requested by the employee or victim, or with voluntary consent. The bill applies to employment contracts entered into, modified, or extended on or after January 1, 2019. It requires the governor’s signature to become law.
If you feel your employer unlawfully discriminated against you, an employment discrimination attorney can help evaluate your claim and recommend a course of action. Van Egmond & Heitlinger, APC provides consultation and representation across a full range of legal services. Call us today at (209) 876-8886 or contact us online.