California Governor Jerry Brown recently signed Senate Bill 1300 into law effective January 1, 2019. The new law provides a variety of additional protections for employees filing harassment claims that directly impact employer liability along with restrictions on non-disclosure and settling claims. Here’s what employers need to know about California SB Bill 1300.
Employer Culpability for Non-Employees
Under California SB 1300, employers may be held accountable for the actions of non-employees with respect to harassment. The new law extends beyond sexual harassment to any type of harassment waged against both employees and non-employees working as contractors, volunteers, or interns. If the employers know or should have known about the harassment and failed to take immediate corrective action, they can be held liable.
Restrictions on Releases and Non-Disparagement
Employers are expressly prohibited from offering employment or monetary incentives to secure a release from legal liability under California SB 1300. This means that employers can’t exchange a raise or bonus or impose conditions of continued employment to incentivize employees into signing releases abdicating any claim or injury against the employer. The provision extends to preserve the right of the employee to file or pursue a civil action or complaint. Additionally, employers are no longer allowed to require an employee to sign a non-disparagement agreement or any other document that prevents the employee from disclosing information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
Legal Standards for Harassment Claims
In California SB 1300, the legislature adopted Supreme Court Justice Ruth Bader’s concurrence in Harris v. Forklift Systems that a sexual harassment plaintiff need not prove that his or her productivity declined as a result of harassment. Rather, the standard specifies that a reasonable person subjected to the discriminatory conduct would find that the behavior altered the working conditions to the extent that it was more difficult to do the job. Further, California SB 1300 expressly states that a single instance of harassment is sufficient to warrant legal jeopardy if the harassing conduct unreasonably interfered with the plaintiff’s job performance or created a hostile, intimidating, or offensive work environment.
The new law recommends that employers implement bystander intervention training to educate employees on how to stand up for coworkers who are experiencing harassment and speak out about unlawful or abusive behavior in the workplace. The training should include practical guidance on how to recognize problematic behavior and to motivate fellow bystanders to act when they observe inappropriate behavior. The training can include role-play and other exercises to build knowledge and confidence around successful intervention. To complement the exercises, employers should provide resources that employees can access to support their intervention efforts.
Independent Contractors Not Necessarily Excluded
A company would not necessarily be insulated from the provisions of this bill simply by virtue of the worker being classified as an independent contractor. New developments in California’s definition of independent contractor status makes it highly likely that an independent contractor would be reclassified as an employee for purposes of Senate Bill 1300. Many California employers have begun shifting workers to Employer of Record or Payrolling services ensure fuller compliance with employment laws and risk mitigation.