A #MeToo Legislative Reckoning is Coming to California in 2018

Category: Blog Posts
Date: May 1, 2018 10:41 AM
A #MeToo Legislative Reckoning is Coming to California in 2018

This post was authored by Stefanie K. Vaudreuil.

There are a number of bills pending in the California Legislature this year that employers should be watching closely.

SB 1038 California Fair Employment and Housing Act: personal liability

Under existing law, individuals may be liable under the California Fair Employment and Housing Act (FEHA) for acts of unlawful harassment. SB 1038, if passed, will add individual liability for retaliation. According to the Senate Judiciary Committee’s analysis, “[f]ear of retaliation is a major reason why victims choose not to report discrimination and harassment. Yet current California law does not clearly hold individuals accountable for retaliation.” The bill’s author further states the change in the law is necessary because it will discourage individuals from retaliating against employees who exercise their rights under FEHA by complaining of discrimination and harassment. The California Association of Joint Powers Authorities opposes the bill, stating that “[t]his measure puts public taxpayer dollars at risk by holding public entities financially responsible for employee’s retaliatory actions that were completely outside of the employer’s knowledge, influence or ability to stop . . . Although seemingly a deterrent for retaliatory actions, it is the public employer who pays the liability of the employee, even if the employer has no reason to know of an employee’s retaliatory act.”

AB 1870 Employment discrimination, unlawful employment practices

Presently, a complaint must be filed with the Department of Fair Employment and Housing (DFEH) within one year from the date of the alleged unlawful employment action. This bill proposes to extend that time from one to three years. The bill’s author argues that the extension of time will allow “additional time to resolve grievances outside of court, without feeling compelled to file a claim in order to meet the short filing deadline.” Opponents of the bill believe that the extension should apply only to sexual harassment claims and that it should be no more than two years.

AB 2946 Division of Labor Standards Enforcement limitations period

Like AB 1870, this bill seeks to extend the time to file a complaint of retaliation with the Division of Labor Standards Enforcement (DLSE). The current time limitation is six months. This bill also would allow a prevailing employee to claim attorney’s fees for whistleblower claims. No statutory entitlement exists that would allow a prevailing plaintiff to an award of attorney’s fees for claims brought pursuant to Labor Code section 1102.5. The California Chamber of Commerce opposes the bill, citing the “one sided attorney’s fee provision” will “incentivize further litigation.”

AB 1867 Employment discrimination, sexual harassment records

Employers are required to maintain employee personnel records for at least three years after the employee’s separation from employment. However, due to the recent rise in sexual harassment allegations and claims, the bill’s author believes it is necessary to change the law in this regard. The bill provides that employers with 50 or more employees would be required to maintain records of internal sexual harassment complaints and investigations for a period of 10 years from the date of the filing of the complaint. The California Chamber of Commerce opposes the bill as unclear and overly burdensome for employers.

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