Governor Brown Signs Several Pieces Of #MeToo Legislation Into Law, But Vetoes Others

On September 30, 2018, for the final time during his tenure as Governor, Governor Jerry Brown acted on a series of bills passed by the legislature that would have far-reaching consequences for employers.  Though employers can breathe a sigh of relief that some bills were vetoed, the Governor’s signature on several others signals big changes in the coming year.

What The Governor Vetoed

AB 3080 – Ban on Mandatory Workplace Arbitration Agreements

Most significantly, Governor Brown vetoed AB 3080, which we reported on in depth on August 23, 2018. AB 3080 would have imposed a ban on mandatory workplace arbitration agreements for all claims of employment discrimination, retaliation, and harassment, as well as wage-and-hour claims. In his veto message, Governor Brown did not mince words: “this bill plainly violates federal law.”

AB 1867 – Sexual Harassment Records

Governor Brown also vetoed AB 1867, which would have required employers to maintain internal records of employee complaints of sexual harassment for a minimum of 5 years after the last day of employment of the complainant or alleged harasser, whichever is later. Governor Brown’s veto message noted that the bill was “unwarranted” because “current law already requires personnel records – including records of complaints – be maintained for suitable periods of time.”

AB 1870 – Extending Deadline to File DFEH Complaints

The Governor also rejected AB 1870, which would have extended the time period for filing complaints of workplace discrimination and harassment with the Department of Fair Employment and Housing (“DFEH”) from one year to three years. Governor Brown explained that the one-year statute of limitations currently in place “not only encourages prompt resolution while memories and evidence are fresh, but also ensures that unwelcome behavior is promptly reported and halted.”

What The Governor Signed

Of particular importance for employers going forward, however, is what the Governor signed.

SB 1300 – Release of FEHA Claims; Nondisparagement Provisions; Harassment Claims

SB 820 – Ban on Nondisclosure Provisions in Settlements Involving Sexual Misconduct

SB 820 adds Section 1001 to the Code of Civil Procedure and prohibits a provision in a settlement agreement that prevents the disclosure of “factual information related to” certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, filed in a civil action or with an administrative agency.  Any such provision inserted into a settlement agreement after January 1, 2019 is void as a matter of law and against public policy.  The statute does not define exactly what it covers, although it does specify that a provision preventing the disclosure of the amount paid in settlement of a claim is enforceable.

SB 1343 – Expanded Sexual Harassment Training Requirements

Employers who employ 5 or more employees, including temporary or seasonal employees, now must provide at least 2 hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every 2 years thereafter. 

SB 826 – Female Members of Boards of Directors

SB 826 adds Section 301.3 to the Corporations Code, which will require that “[n]o later than the close of the 2019 calendar year, a publicly held domestic or foreign corporation whose principal executive offices, according to the corporation’s SEC 10-K form, are located in California shall have a minimum of one female director on its board.”  The number of required female directors increases by the close of calendar year 2021.  In a rare signing message, Governor Brown noted that although “serious legal concerns have been raised” about the bill, “recent events in Washington D.C. – and beyond – make it crystal clear that many are not getting the message.”

What Employers Need To Know

This was the summer of #MeToo legislation.  Now is the time for employers to take stock of their sexual harassment policies and practices and ensure they are in compliance with existing law, and with the new laws going into effect in the new year. 

Employers will also need to review their employment documents to ensure they do not run afoul of the new restrictions imposed by the Legislature: 

• As to SB 1300, employers should carefully review employment agreements (especially executive-level contracts), employment applications and employee policies to ensure that they neither require an advance waiver of FEHA claims or a disclaimer that the individual does not possess a FEHA claim, nor contain nondisparagement or confidentiality provisions that prevent employees from disclosing information about unlawful acts in the workplace, including sexual harassment.  
• As to SB 820, employers need to carefully review their standard form settlement, severance, and separation agreements to revise any confidentiality or non-disclosure provisions that prevent employees from disclosing factual information related to claims of sexual assault, harassment, or discrimination.

Finally, while sexual harassment training is nothing new, employers will need to make sure they are fully compliant going forward with the more stringent requirements imposed by SB 1343.  

Contact Payne & Fears LLP if you have any questions about these new changes or would like further guidance.