California has expanded its sexual harassment prevention training law to include employers with five or more employees to provide sexual harassment education. The state is requiring that within six months of hiring each new employee, they receive proper training.  Other new laws have been enacted by the state regarding workplace harassment.

On September 30, 2018, California passed a series of laws to strengthen the state's protection against incidences in the workplace. The following new regulations went into effect January 1st, 2019:

• Employers with five or more employees must provide sexual harassment prevention training to each employee.
• Clarify and expand employer liability for workplace harassment.
• Employers will no longer be allowed to enter certain agreements related to sexual harassment and other unlawful acts in the workplace.

What Does Mean for Your California Business?

As an employer, it's vital that you become familiar with California's new laws. If you have five or more employees, it's in your best interest to review and understand the new training requirements.  Find resources, such as training courses and additional guidance, on the California Department of Fair Employment and Housing website.

How Will Fusco & Orsini Insurance Services Help You?

FREE of charge, we are providing our clients with access to mandatory training for supervisory and non-supervisory employees.  Our ‘Training360’ platform, which offers many courses to our clients and their employees, includes various sexual harassment prevention training webinars to satisfy the requirements of the new California law.

Understanding Why the Law Changed

The California Fair Employment and Housing Act, or FEHA, was created to prohibit workplace harassment. The law prohibits every employer in the state of California from harassing or allowing harassment based on the protected traits listed below:

• Employees
• Applicants
• Unpaid Interns
• Unpaid Volunteers
• Plus, the law protects anyone providing services under a contract in the workplace.

The FEHA states that any employer, no matter the size, may be held liable for sexual harassment committed in its place of work even if the harasser is not an employee.  California employers with 50 or more employers must provide sexual harassment prevention training to all supervisory employees every two years under the FEHA.

Overview of Changes to the Existing Laws

The expanded FEHA laws go into effect January 1, 2019, as follows:

1. Expanding on the current requirements for supervisor training on sexual harassment prevention to employers with five or more employees. Employers must also provide one hour of sexual harassment prevention training to all non-supervisory employees.

2. Employers held responsible for workplace harassment based on any protected trait, not just sexual harassment committed by nonemployees in the workplace. The rules that must be followed by an employee making a claim are clarified.

3. Employers cannot force an employee to sign an agreement waiving a claim or right for workplace discrimination or harassment, or that prohibits disclosure of any information about unlawful acts in the workplace.

Another change to California law is prohibiting confidentiality requirements in sexual harassment claim settlements and sex discrimination claim settlements.

Training Requirements for 2019

Every California employer with five or more employees must provide the following effective January 1, 2019:

• Training to each supervisory employee with at least two hours of sexual harassment prevention training.
• Training to each non-supervisory employee with at least one hour of sexual harassment prevention training.

Employees must complete the appropriate sexual harassment prevention training within six months of starting their position.  Additional training must be completed every two years. The initial compliance deadline for these requirements is January 1, 2020. Employers must provide the initial training after January 1, 2019, to meet this deadline.

As of January 1, 2020, special requirements apply temporary employees, seasonal employees and any employees hired to work six months or fewer. For these employees, employers must provide the required training within 30 calendar days after the employees' hire dates or before the employees have worked 100 hours, whichever happens first.

Employers should monitor the DFEH website for two upcoming online training courses that employers can use to satisfy the training requirements.

Extended Employer Liability for Harassment in the Workplace

Under certain circumstances, the FEHA allows an employer to be held accountable for acts of sexual harassment committed by nonemployees in the workplace.  Effective January 1, 2019 employers may also be held responsible for nonemployees acts of any harassment committed in the workplace.  An employer may be held liable under the following conditions:

• A nonemployee commits harassment against any of the employers’ employees, applicants, unpaid interns, unpaid volunteers or people providing services according to a contract in the workplace.
• The harassment violates any FEHA-protected trait.
• The employer neglects to take prompt and appropriate corrective action.
• The employer (or its agents or supervisors) is aware of or should be aware of the conduct.

Prohibited Waivers and Confidentiality Agreements

An employer may not demand an employee to sign either of the following in exchange for a bonus or raise, or as a requirement of employment or extended employment:

• A release of a claim or right against the employer for employment practices that violate the FEHA.
• A non-disparagement agreement or other documents that prevent the employee from disclosing information about unlawful or potentially unlawful acts in the workplace.

These rules pertain to agreements executed on or after January 1, 2019.

Keep in mind that the rules do not apply to agreements to settle claims involving unlawful acts in the workplace that have been filed by an employee either in court, with an administrative agency, in an alternative dispute resolution forum or through an employer’s internal complaint process. However, there are new restrictions on settlement agreements involving claims of:

• Workplace sexual harassment.
• Retaliation is related to allegations of sex discrimination or sexual harassment in the workplace
• And acts of employment discrimination based on sex.

Effective January 1, 2019, these settlement agreements may not include any provision that restricts the disclosure of factual information related to the underlying claim. Settlement agreements executed on or after January 1, 2019, that violate this prohibition are void and unenforceable. The bill also prevents courts from issuing any order or stipulation that restricts this type of disclosure in sex discrimination or sexual harassment cases.

However, settlements for sex discrimination or sexual harassment may shield the claimant’s identity and all facts that could lead to the discovery of his or her identity (including pleadings filed in court), if the claimant is the one who requests it (and if no government agencies or public officials are parties to the settlement agreement). Also, settlement provisions may prevent parties from disclosing the amount paid for a claim settlement.

Final Thoughts

At Fusco & Orsini Insurance Services, we understand the importance of keeping your employees protected. After all, they are the foundation of your business. We also know that understanding and complying with new rules and regulations can be confusing. That is why we're providing our clients with the tools necessary to protect their employees and their business.

Call our insurance experts today at 858-384-1506 to discuss your needs and options. You can also visit https://foagency.com/risk-management/ to research and contact us regarding risk management and loss control solutions.  We have many options available to help you on an ongoing basis.