On Sept. 30, 2018, California enacted a series of laws that strengthen the state’s protections against workplace harassment. Effective Jan. 1, 2019, these new laws:
- Require employers with five or more employees in the state to provide sexual harassment prevention training to all employees;
- Expand and clarify employer liability for workplace harassment; and
- Prohibit employers from entering certain agreements related to sexual harassment and other unlawful acts in the workplace.
All California employers should become familiar with the new laws. Those with five or more employees should review the new training requirements and monitor the California Department of Fair Employment and Housing’s (DFEH) website for training courses and additional guidance.
The California Fair Employment and Housing Act (FEHA) broadly prohibits workplace harassment. All employers in the state are prohibited from harassing individuals or allowing harassment based on any of the protected traits listed below. Employees, applicants, unpaid interns, unpaid volunteers and anyone providing services under a contract in the workplace are all protected under the law.
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FEHA Protected Traits
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Race
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Disability/medical condition
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Sex
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Color
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Genetic information
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Gender
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Religion
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Marital status
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Gender identity
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National origin
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Age (40 and older)
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Gender expression
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Ancestry
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Military/veteran status
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Sexual orientation
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Effective Jan. 1, 2019, the FEHA is expanded as follows:
- The current requirements for supervisor training on sexual harassment are expanded to employers with five or more employees. These employers must also provide one hour of sexual harassment training to all nonsupervisory employees.
- Employers may be held liable for workplace harassment that is based on any protected trait (not just sexual harassment) committed by nonemployees in the workplace. The rules on what an employee must prove in a harassment claim have also been clarified.
- Employers may not require an employee to sign any agreement that waives a claim or right for workplace discrimination or harassment, or that prevents disclosure of any information about unlawful acts in the workplace.
New Training Requirements
Effective Jan. 1, 2019, every California employer with five or more employees must provide:
As of Jan. 1, 2020, special requirements will apply for seasonal employees, temporary employees and any employees who are hired to work for less than six months. For these employees, employers must provide the required training within 30 calendar days after the employees’ hire dates or before the employees have worked 100 hours, whichever comes first.
The DFEH plans to develop two online training courses that employers may use to satisfy the training requirements. Employers should monitor the DFEH website for these courses and additional guidance.
Effective Jan. 1, 2019, every California employer with five or more employees must provide:
- Each supervisory employee with at least two hours of sexual harassment training; and
- Each nonsupervisory employee with at least one hour of sexual harassment training.
As of Jan. 1, 2020, special requirements will apply for seasonal employees, temporary employees and any employees who are hired to work for less than six months. For these employees, employers must provide the required training within 30 calendar days after the employees’ hire dates or before the employees have worked 100 hours, whichever comes first.
The DFEH plans to develop two online training courses that employers may use to satisfy the training requirements. Employers should monitor the DFEH website for these courses and additional guidance.
Expanded Employer Liability for Workplace Harassment
The FEHA allows an employer to be held liable for acts of workplace sexual harassment committed by nonemployees under certain circumstances. Effective Jan. 1, 2019, employers may also be held liable for nonemployees’ acts of any type of unlawful workplace harassment. An employer may be held liable if:
An employer may not require an employee to sign either of the following in exchange for a raise or bonus, or as a condition of employment or continued employment:
These rules do not apply to agreements to settle claims involving unlawful acts in the workplace that have been filed by an employee either in court, with an administrative agency, in an alternative dispute resolution forum or through an employer’s internal complaint process. However, there are new restrictions on settlement agreements involving claims of:
However, settlements for sex discrimination or sexual harassment may shield the claimant’s identity and all facts that could lead to the discovery of his or her identity (including pleadings filed in court), as long as the claimant is the one who requests it (and as long as no government agencies or public officials are parties to the settlement agreement). In addition, settlement provisions may prevent parties from disclosing the amount paid for a claim settlement.
The FEHA allows an employer to be held liable for acts of workplace sexual harassment committed by nonemployees under certain circumstances. Effective Jan. 1, 2019, employers may also be held liable for nonemployees’ acts of any type of unlawful workplace harassment. An employer may be held liable if:
- A nonemployee commits harassment against any of the employers’ employees, applicants, unpaid interns, unpaid volunteers or people providing services pursuant to a contract in the workplace;
- The harassment is based on any FEHA-protected trait;
- The employer (or its agents or supervisors) knows or should have known of the conduct; and
- The employer fails to take immediate and appropriate corrective action.
An employer may not require an employee to sign either of the following in exchange for a raise or bonus, or as a condition of employment or continued employment:
- A release of a claim or right against the employer for employment practices that violate the FEHA; or
- A non-disparagement agreement or other document that prevents the employee from disclosing information about unlawful or potentially unlawful acts in the workplace.
These rules do not apply to agreements to settle claims involving unlawful acts in the workplace that have been filed by an employee either in court, with an administrative agency, in an alternative dispute resolution forum or through an employer’s internal complaint process. However, there are new restrictions on settlement agreements involving claims of:
- Workplace sexual harassment;
- Employment discrimination based on sex; or
- Retaliation related to claims of sex discrimination or sexual harassment in the workplace.
However, settlements for sex discrimination or sexual harassment may shield the claimant’s identity and all facts that could lead to the discovery of his or her identity (including pleadings filed in court), as long as the claimant is the one who requests it (and as long as no government agencies or public officials are parties to the settlement agreement). In addition, settlement provisions may prevent parties from disclosing the amount paid for a claim settlement.
