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The #MeToo Movement Has the State Legislature on the Verge of Changing Employment Laws

June 18, 2018

Posted in Employment Law

Hollywood was ground zero of the #MeToo and Time’s Up movements before the newly energized issue of sexual harassment spread throughout all industries and the entire country. Ending sexual harassment in the workplace has to do with changing attitudes, a change in what’s considered acceptable language and behavior in the workplace and bad actors being held accountable. The legislature is also considering proposals that will increase employee training mandates and potentially make it easier for employers to be found liable on harassment issues.

Under current state law employers with 50 or more employees must provide sexual harassment training to management within six months of being hired or promoted and also provide training again every two years. Starting this year this training also has to cover harassment based on sexual orientation, gender identity and expression. The training also has to be conducted by a qualified trainer with knowledge and expertise in these areas.

There are at least three bills pending in the legislature that will expand this training even further. Each bill is unique and given the political climate it’s likely that at least some of their provisions, in one form or another, will be passed into law.

  • Senate Bill 1343: Smaller employers would need to conduct the training with the threshold size decreased from 50 to five. All employees would need to attend sexual harassment training and the employer would need to show training was completed by the start of 2020 with later trainings being held at least every two years. The state would be required to come up with a two hour training program available online that employers could use to comply with the law.
  • Senate Bill 1300: Current law states that if an employer fails to provide the required harassment training that could be used as evidence the employer failed to prevent harassment, discrimination or retaliation but only if the plaintiff has substantiated the other elements of his or her legal claims. Under this bill a plaintiff could establish a legal claim if a business failed to take the required steps to prevent harassment without having an underlying harassment claim. The bill would also state that a single harassing act could be the basis for legal action and limit non-disparagement clauses. Training requirements would be similar to Senate Bill 1343 but would also include the topics of bystander intervention and how to report harassment internally and to the DFHE.
  • Assembly Bill 3081: This proposal includes training requirements that conflict with the other bills. It would mandate sexual harassment training for all employees under the same time frames but would only require it for employers with 25 or more employees. The bill also states there would be a rebuttable presumption an employer retaliated against an employee for reporting sexual harassment if he or she was subjected to an adverse employment action within 90 days of the complaint. An adverse employment action would be something negatively impacting the terms and conditions of employment, including a demotion, cut in pay, reduced hours, a lay off or termination.

Most employers won’t tolerate sexual harassment in the workplace but because of the relatively few who have, the number of employers who’ll be required to provide harassment training and the number of employees who will be getting it will probably greatly increase after this legislative session.

If you have any questions about sexual harassment or training required by the state, contact our office so we can talk about it, answer your questions and discuss how we can help.