Author: Erica Parks
September 30, 2018, was the cut-off for Governor Brown to sign or veto bills passed by the California legislature this year. So it’s not surprising that that the summer months saw a flurry of employment legislation across Governor Brown’s desk.
Most significantly, the Governor vetoed AB 3080, which, as we alerted you last month, would have effectively banned non-disclosure agreements and arbitration agreements with respect to certain harassment and discrimination claims.
Nevertheless, the Governor signed into law this summer a record number of bills, many of which further regulate the workplace. Rounded up below are the most notable new employment bills signed into law, which will take effect on January 1, 2019, unless otherwise specified below:
California Legislature Amends FEHA and Expressly Affirms and Rejects Harassment Case Law
SB 1300, signed into law September 30, 2018, amends the California Fair Employment and Housing Act (“FEHA”) to:
- Expand employer liability for acts of unlawful harassment by nonemployees (not just “sexual” harassment);
- Prohibit employers, in exchange for a raise or bonus or as a condition of employment or continued employment, from requiring: (1) a release of FEHA claims or rights; (2) execution of a non-disparagement agreement or other document that prohibits disclosure of unlawful workplace conduct. Any such agreement or document will be considered void and unenforceable. This provision does not apply to negotiated settlements of claims filed in court, before an administrative agency or alternative dispute resolution forum, or submitted through an employer’s internal complaint process.
- Prohibit a prevailing defendant from being awarded fees and costs unless the court finds the action was frivolous when brought or that the plaintiff continued to litigate after it clearly became so.
The bill also adds a new section to the Government Code (Section 12923) that declares that the purpose of FEHA is “to provide all Californians with equal opportunity to succeed in the workplace and should be applied accordingly by the courts.” In adopting this new section, the legislature expressly affirmed:
- The standard set forth in Justice Ruth Bader Ginsburg’s concurrence in Harris v. Forklift Systems, 510 U.S. 17 (1993) (in a workplace harassment suit “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.”).
- The rejection in Reid v. Google, Inc., 50 Cal.4th 512 (2010), of the “stray remarks doctrine.” The legislature reasoned that “the existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.”
- The observation in Nazir v. United Airlines, Inc., 178 Cal.App.4th 243 (2009), that hostile working environment cases involve issues “not determinable on paper.”
