Legislating (passing laws) in response to political and social trends has never been a good idea. In 2018, California passed a number of new #metoo laws going into effect in 2019 that will change how sexual harassment cases are handled, giving accusers the upper hand in employment litigation and virtually guaranteeing that even false accusations can lead to multi-million dollar settlements for the accusers and lifetime employment bans for those accused.

AB 2770—Makes it Virtually Impossible to Defend Yourself Against a False Allegation of Harassment By Eliminating Defamation Defenses

California’s Assembly Bill 2770 now states that complaints and communications regarding sexual harassment are not defamatory.

• Assembly Bill 2770 makes privileged—and not defamatory—the following communications:

– Complaints of sexual harassment by an employee, without malice, to an employer based on credible evidence; (Is “credible evidence” merely the word of the accuser? Probably).

– Communications between employers and interested persons, without malice, regarding a complaint of sexual harassment; and

• When responding to reference checks, this bill authorizes employers to answer whether or not the employer would rehire an employee, and whether the decision to not rehire is based on the employer’s determination that the employee engaged in sexual harassment. (In other words, an employer and reference checks can now rat you out if an allegation of harassment was made against you).

The effect of the new law allows accusers to make accusations without fear of a counter-suit for defamation or libel. The law does not define what “credible evidence” is, but we now know in the #metoo era and even an uncorroborated allegation is deemed credible by most law makers as we saw from the Kavanaugh congressional hearings.

SB 1300—Prevents Employers From Getting Releases and non-disparagement agreements relating to allegations of sexual harassment

This bill prohibits employers from requiring employees to:

• Release harassment or discrimination claims under California’s Fair Employment and Housing Act in exchange for a raise or bonus or as a condition of hire or continuing employment; and

• Sign non-disparagement agreements or other documents preventing employees from disclosing information about unlawful acts in the workplace, including sexual harassment.

In other words, an employer and the accused has no right to confidentiality regarding sexual harassment allegations and cannot contract to keep allegations confidential and prevent an employee from smearing the employer and the accused even after they take the benefits of employment and leave the employer.

SB 1300—Even a Single “Stray Remark” Is Sexual Harassment; It is Virtually Impossible Now to Get a Harassment Claim Dismissed

Traditionally, under the law, sexual harassment had constitute some persistent pattern or practice of harassment; a single incident or a “stray remark” was not sufficient to constitute sexual harassment under the law. Employers were able to defend against a lawsuit on summary judgment, by getting claims dismissed that were based on single remark. This kept personal injury and contingency lawyers at bay because they had to base their case on something real and substantial. That is no longer the case and sexual harassment can be based on a single comment, even if it is made in the locker room. Under the new law:

• A single incident of harassing conduct is sufficient to defeat summary judgment;

• The “stray remarks” doctrine is rejected, and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a non-decisionmaker, may be relevant evidence in a harassment claim;

• The standard for assessing sexual harassment does not vary by workplace; and

• “Harassment cases are rarely appropriate for disposition on summary judgment.”

SB 820—Prohibits confidential settlements of sexual harassment claims; You can Pay Millions to Settle a Harassment Claim and The Accuser Is Then Free to Broadcast Those Claims

Employers and the Accused are no longer entitled to any confidentiality, even if they pay millions to settle their claims. California enacted Senate Bill 820 which restricts this practice. Now:

• Any provision in a settlement agreement that prevents the disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action regarding the following is prohibited:

– An act of sexual assault;

– An act of sexual harassment; and

– An act of workplace harassment or discrimination based on sex, or failure to prevent an act of workplace harassment or discrimination based on sex, or an act of retaliation against a person for reporting harassment or discrimination based on sex.

SB 1300—Makes it Virtually Impossible to Recover Attorneys Fees In Defending Against False sexual harassment Allegations

Courts previously had discretion to award attorney’s fees and costs to an employer who wins a sexual harassment case as false allegation cases can cost millions of dollars to defend. Senate Bill 1300 now makes it virtually impossible to recover attorneys fees. Now, in order to award attorney’s fees and costs to a prevailing employer, the court must find that the action was frivolous, unreasonable or groundless when brought, or that the plaintiff continued to litigate the case after it clearly became so. This is a nearly impossible standard to meet unless you filmed every interaction with the complaining victim and can prove you never interacted with that person.

SB 1343—Makes sexual harassment training mandatory for more employers with 5 or more employees; More Jobs For Harassment Trainers and Mounting Costs for Small Businesses

Previously, large employers in California (50 or more employees) were required to provide two hours of sexual harassment training to all supervisors within six months of becoming a supervisor and every two years thereafter. The training can only be provided by certain trainers, and there are very specific requirements for what must be included in the training. In 2019, these requirements will expand to smaller employers and to more employees.

• Employers with five or more employees must provide:

– The two hours of sexual harassment training to all supervisory employees by the end of 2019;

– One hour of sexual harassment training to all nonsupervisory employees by the end of 2019;

• The training for supervisors and non-supervisors must be provided every two years thereafter, and within six months of an employee becoming a supervisor and six months after hire for a non-supervisor.

SB 826—Requires female board members for public companies

I previously wrote about why this new law was unconstitutional gender discrimination against men. California enacted Senate Bill 826 to require that by the end of 2019, all publicly held corporations whose principle executive offices are in California have at least one woman on their board of directors. That number will increase on a going-forward basis depending on the size of the board.

• By the end of 2021, for a board with

– Six or more directors, there must be at least three women;

– Five or more directors, there must be at least two women; and

– Four or fewer directors, there must be at least one woman.

This bill allows for harsh punishment in the event of a violation, permitting the Secretary of State to impose a fine of $100,000 for the first violation, and $300,000 for a subsequent violation.

California’s New Sexual Harassment Laws Are A Boon For Personal Injury Lawyers

This represents only what is new in 2019. There are pre-existing requirements for California and other states for employers that already make it very easy for personal injury lawyers to sue employers and alleged harassers. Now, with virtually all the defenses and protections for employers and the accused wiped away, you can be sure there will be an exponential increase in sexual harassment lawsuits that will be brought just for settlement value alone, even if the lawsuits are based on false allegations.

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