Do California Employment Laws Adequately Protect Women?
Governor Jerry Brown recently signed several bills into law that will bring reforms to the workplace. With many bills pushing for greater workplace transparency and responsibility in the wake of the #MeToo movement, here are some of the bills that made the cut:
Senate Bill 826 (SB 826) – Female Board Members
This bill brings women to the forefront of a corporation. SB 826 requires all publicly held corporations, domestic and foreign, with principal executive offices in California, to have at least one female on its board of directors by the end of 2019. A corporation may add an additional director to its board to comply.
By the end of 2021, corporations must have the correct number of female directors in relation to their board size outlined in SB 826. For example, a corporation with five directors must have two female directors. If a corporation has six or more directors, three of them must be female.
The Secretary of State must publish a report by July 1, 2019 of the number of corporations whose principal executive offices are in California and have at least one female director, and an annual report beginning March 1, 2020, detailing the number of corporations that (1) complied with requirements in 2019, (2) moved their headquarters in or out of California, and (3) were subject to these provisions during 2019, but no longer publicly traded.
Failure to comply with this new law could result in a $100,000 fine as a first offense and a $300,000 fine for each subsequent offense.
Senate Bill 1343 (SB 1343) – Sexual Harassment Training
The California Fair Employment and Housing Act (FEHA) requires employers with 50 or more employees to provide at least two hours of sexual harassment training and education to all supervisory employees. Supervisory employees must complete this training every two years.
SB 1343 expands this law to all California employers who have at least five employees, even if the employees are temporary or seasonal. In addition to two hours of training for supervisory employees, all nonsupervisory employees will be required to complete at least one hour of sexual harassment training within six months of hire or promotion, and every two years thereafter.
The Department of Fair Employment and Housing (“DFEH”) will be required to provide an online training course that meets the new legal requirements.
Employers must have their employees complete their first round of anti-harassment training before January 1, 2020.
Senate Bill 820 (SB 820) – Settlement Agreements
SB 820 prohibits settlement agreement provisions that prevent the disclosure of factual information related to civil or administrative complaints of sexual assault, sexual harassment, workplace harassment and discrimination based on sex. SB 820 affects settlement agreements entered into on or after January 1, 2019.
Assembly Bill 3109 (AB 3109) – Contractual Freedom of Speech
AB 3109 invalidates any provision in a contract that waives a party’s right to testify in a legal proceeding regarding alleged criminal conduct or sexual harassment on the part of the other contracted party, the party’s agents or employees. This law applies when the party has been required or requested to testify in a legal proceeding by court order, subpoena or administrative or legislative agency. AB 3109 affects any contract entered into, on or after January 1, 2019.
Senate Bill 1300 (SB 1300) – Employer Liability
SB 1300 has several components that you can learn more about in our September blog. Primarily, though, in concern to sexual harassment in the workplace, SB 1300 expands an employer’s liability under FEHA to acts of harassment conducted by nonemployees and contractors. Nonemployees could include unpaid interns or volunteers. In addition, an employer may provide bystander intervention training to their employees as they see fit.
Assembly Bill 1976 (AB 1976) – Mothers Gain Additional Lactation Accommodations
California Labor Code requires every California employer to provide reasonable breaks and accommodations to employees who need to lactate for their infant children. The lactation space must be private, in close proximity to the employee’s work area and cannot be a toilet stall.
Effective on January 1, 2019, the provided lactation space must be completely separate from a designated bathroom. If an employer can prove operational, financial or space limitations, a temporary space will be compliant if it is free from intrusion and separate from a bathroom. For agricultural employers, a lactation space must be private, enclosed and shaded.
Again, if an agricultural employer can prove this requirement would impose undue hardship, a private lactation space that is not a toilet stall and near the employee’s work area will be considered compliant.
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Source: Arata, Swingle, Van Egmond & Goodwin