Less than a year after the Me Too and “We Said Enough” movements reverberated around California’s Capitol, a pack of bills that seek to address sexual harassment in the workplace is drawing pushback from business groups that fear a sharp increase in lawsuits.
Among them: efforts to ban nondisclosure and limit nondisparagement agreements, end forced arbitration, make harassers personally liable, and extend the statute of limitations to file a claim with the state.
“As employers, you want to protect your workforce and the employees that you have working for you,” said Jennifer Barrera with the California Chamber of Commerce. But she said the confusion and litigation that would follow the new mandates “is what is concerning to employers, who are trying to do the right thing but nonetheless could wind up facing a lawsuit in court.”
One measure, AB 3080 by Asm. Lorena Gonzalez Fletcher (D-San Diego), would ban employers from requiring workers to participate in private arbitration to settle disputes such as sexual harassment claims, rather than going to court.
“Right now, workers basically have no option but to sign a forced arbitration agreement as a condition of employment,” said Mariko Yoshihara with the California Employment Lawyers Association, one of the bill’s supporters. “If we can’t at least give workers the option to say no, then what’s the point of having the laws that we do … if workers can’t even enforce them in the courts?”
CalChamber has placed the bill on its “job killer” list, which has historically held great sway with moderate Democrats, as well as Gov. Jerry Brown.
“It has been couched and presented as a sexual harassment bill as a part of the Me Too movement, but it’s really much broader than that,” Barrera said.
She notes the measure applies to “any claim under the labor code and any claim under the Fair Employment and Housing Act, which is obviously much more than just sexual harassment claims.”
Examples of claims that Barrera said could be forced into court include rest and meal breaks, sick leave and discrimination claims that aren’t related to sexual harassment.
“It not only creates massive confusion for employers attempting to comply with the law, but it also creates immense opportunity for trial lawyers to sue,” John Kabateck with the National Federation of Independent Businesses wrote in a statement.
But the measure has already passed the Assembly, which is seen as having a stronger bloc of moderates. Unless it’s amended, it need only win Senate approval before advancing to the governor’s desk.
Another bill, SB 1300 by Sen. Hannah-Beth Jackson (D-Santa Barbara), is also on the Chamber’s job killer list. It would prohibit employers from requiring workers to sign away two rights as a condition of employment or receiving a raise: nondisparagement agreements that block victims from speaking publicly, and filing legal claims.
However, under the law, those agreements could still be signed as part of a settlement — a common practice in exchange for a severance package.
Jackson says her measure would prohibit “underhanded legal tactics that prevent victims from speaking out about sexual harassment and seeking justice in our courts.”
The Chamber opposes the bill but is preparing to withdraw its “job killer” label after Jackson removes a separate provision from the measure. It must still pass both the Assembly and Senate.
Two other bills by Sen. Connie Leyva (D-Chino) are also active in the Legislature’s final weeks of session.
SB 820 would ban the use of nondisclosure agreements in sexual harassment, assault and discrimination cases. And SB 1038 would make harassers personally liable for retaliating against anyone who filed a claim against them. Both measures require both Assembly and Senate approval.
“This bill will make sure that if you retaliate against someone who comes forward for sexual harassment … you can be held accountable for your actions,” Leyva said at Wednesday’s news conference, arguing that most victims do not report incidents because “they fear retaliation.”
And AB 1870, by Asm. Eloise Gómez Reyes (D-Grand Terrace), would extend the deadline to file a harassment or discrimination complaint with the state Department of Fair Employment and Housing from one year after an incident occured to three. This measure only needs a final vote in the Senate.
The Chamber withdrew its opposition to SB 1038 earlier this summer but opposes the other measures.
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