January 31, 2019
California’s Congressional Supermajority Marks New Era of Employee Friendly Legislature
January 31, 2019 | Ryan Kagarakis
The November 2018 elections resulted in many represetnative changes as well as a change in governor. California’s new legislature is now considered a supermajority because Democratic representatives comprise over 2/3 of the seats in both the Senate and the Assembly. Governor-Elect Gavin Newsom is expected to have allies in both houses when he takes office in January. Although Gavin Newsom’s stance on labor and employee-related issues have yet to be tested it is safe to assume that the balance between employee and employer is unlikely to become more balanced in the near future.
As we look towards the future, I thought it would be important to go over a couple of bills that went into law in 2018.
Senate Bill 1343: Sexual Harassment Prevention Training
By January 1, 2020, an employer with five or more employees must provide at least one hour of training to all non-supervisory employees and two hours for supervisory employees. This training must be completed within six months of hire or promotion and must occur at least every two years.
Senate Bill 820: Stand Together Against Non-Disclosure (STAND) Act
This law prohibits confidentiality or non-disclosure clauses in any settlement agreement involving sexual harassment, sexual assault, and workplace discrimination based on sex, or failure to prevent an act of such harassment or decimation, or retaliation. This law applies to ANY workplace discrimination. Plaintiff has the option to ask for confidentiality but the employer cannot. This law applies to agreements entered into on or after 1/1/2019.
Senate Bill 1300: Sexual Harassment
Limitations on prevailing employer’s rights to fees and costs: A prevailing defendant (employer) in a Fair Employment and Housing Act (FEHA) action will only be entitled to attorneys’ fees and costs if the court finds the plaintiff’s (employee) action was “frivolous, unreasonable, or totally without foundation when brought or the plaintiff continued to litigate after it clearly became so. However, if the employee is awarded even $1 the employer could potentially have to pay for all of the employee’s legal fees.
Expanded harassment for third parties: Existing law states that employers may be held responsible for sexual harassment committed by non-employees such as customers, vendors, or third parties but this new law extends the potential liability to all forms of harassment, not just sexual harassment.
Legislative guidance to the courts: A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment. Furthermore, harassment cases are rarely appropriate for disposition on summary judgement. This means that sexual harassment claims will have to be decided by a jury if it goes to trial.
At Brown & Brown, we strongly encourage employers to speak with their legal counsel to determine if obtaining an Employment Practices Liability Insurance (EPLI) policy would be a wise decision for their organization. EPLI is a type of insurance coverage that protects employers from claims such as sexual harassment, wrongful termination, wage and hour violations, failure to promote, gender inequality claims, etc. These types of claims are not covered by general liability or workers’ compensation policies. With more leverage than ever before, employees and their legal teams can demand a higher settlement amount not only because of the high cost of going to trial but for the fact that many of the new laws shift the power away from an employer when it comes time for juries to make a decision.
Commercial Insurance Broker at Brown & Brown Inc.
Phone: 916.625.4616 | Direct Fax: 800.761.6733