How CRE Firms Should Prepare for New #MeToo Employment Laws

The California Legislature has implemented several new employment laws tied to the #MeToo movement for 2019. This isn’t new for the State. New employment laws have emerged in recent years as a result of emerging trends. Past laws have included efforts to combat employee misclassification and wage theft, to protect immigrants in employment, to expand equal opportunity and to strengthen anti-discrimination laws. This year, new bills were inspired by the #MeToo movement. “Collectively, these bills look to break down the structural mechanisms that many believe enable the types of repeated sexual harassment that dominated headlines at times over the past year,” Dwayne P. McKenzie, a partner at Cox, Castle & Nicholson, tells GlobeSt.com. “For instance, to prevent harassment being concealed, bills were aimed at provisions that could be included in release and settlement agreements to prevent employees from speaking out. Other bills sought to protect victims of discrimination from defamation claims for reporting harassment or to strengthen female representation on corporate boards.  A common theme is the effort to better shine a light on harassment in the workplace.”

Some of the most significant changes include SB 1300, which make it illegal for employers to require employees to release claims under the Fair Employment and Housing Act or sign a nondisparagement agreement that prohibits the employee from disclosing sexual harassment in the workplace in exchange for a raise or as a condition of employment; AB 2770, which protects victims of sexual harassment from incurring defamation lawsuits by the alleged wrongdoer; and SB 820, which voids any provisions in settlement agreements that prevent individuals from disclosing facts regarding acts of sexual assault, sexual harassment, and workplace harassment.

Another new law applies particularly to small companies. “Existing law required employers with 50 or more employees to provide sexual harassment prevention training to all supervisors in California,” Cathy T. Moses, senior counsel with Cox, Castle & Nicholson, tells GlobeSt.com. “SB 1343 expanded this training requirement, requiring employers with five or more employees to provide at least two 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 two years thereafter.”

While the #MeToo trend was certainly the impetus for most of the new bills, there are other new employment laws as well. “For instance, AB 1976 expanded lactation accommodation requirements, and SB 1123 expands the State’s paid family leave program so that beginning January 1, 2021, employees can collect benefits if they take time off related to certain participation of a family member in the armed forces,” adds Moses. While these laws apply to all employers universally, real estate developers and contractors may take special note of AB 3018, the expanded skilled and trained workforce provisions. “Existing statutes impose on various types of construction projects by public agencies a requirement that a certain percentage of the skilled journeypersons employed to perform work on the contract or project by every contractor and each of its subcontractors are graduates of an apprenticeship program,” says Moses. “The percentage in 2019 will be 50 percent and will rise to 60 percent in 2020.  AB 3018 imposes substantial, new penalties on contractors and subcontractors that fail to meet these skilled and trained workforce requirements.  With tight construction labor markets, owners and contractors with projects subject to skilled and trained workforce requirements should consider planning in advance to meet their labor needs.”

To prepare and comply, Moses and McKenzie recommend that professionals stay aware and informed. “The number and complexity of the new laws can make that a trying task.  But comprehension and compliance are critical because some of the laws, if violated, can result in significant liability and other penalties. Review of company handbooks, forms, and policies with the new laws and rules in mind is important,” says McKenzie. “Companies should work with their in-house or outside counsel, human resources personnel, and managers to understand and schedule any and all required trainings, record or otherwise document compliance with applicable requirements, and update or replace any forms or agreements that may be affected.  Some of the new laws may take some time to digest and implement successfully. Therefore, companies should begin their review of internal policies or needs as early in the year as possible so that any year-end requirements can be met well in advance of deadlines.” As for the #MeToo movement, employers should expect the impact to have a meaningful and permanent affect on the office culture and environment. “More generally, industry professionals should be mindful that the #MeToo movement may be reflective of a lasting cultural emphasis on combating harassment,” adds McKenzie. “Employers may see an increase in complaints as tolerance of potentially harassing behavior decreases.  With employers having a significant obligation to prevent and protect against such harassment, industry professionals will need to be prepared to respond timely and appropriately to avoid both legal liability and negative publicity.”