At least 11 states, from California to Vermont, passed new protections addressing workplace harassment in 2018 — and many of them go into effect in the new year. California also passed a new law requiring women on corporate boards by the end of 2019.
The reforms come as the #MeToo movement has raised the curtain on sexual harassment and misconduct in the workplace. It also raised questions about whether board diversity can help combat abuse and prevent discrimination.
Over the years, California has led the way in strengthening workplace protections for women as well as sexual and gender harassment. For one, the nation's most populous state has had laws on the books since 2005 involving mandatory harassment training and education in the workplace.
'A lot of political will'
"California is one of the trailblazers on strengthening laws and there's definitely a lot of political will to move quickly and address inadequacies," said Andrea Johnson, senior counsel for state policy at the National Women's Law Center, a Washington, D.C.-based nonprofit that advocates for women's rights.
The passage of the tough new harassment policies follows stories in October 2017 by The New York Times and others about film producer Harvey Weinstein's alleged sexual abuse, although he has denied having nonconsensual sex with anyone. The reports led to the spread of the #MeToo movement and the toppling of other high-profile figures in media and entertainment as well as other industries.
"2018 is unique in that the #MeToo movement affected all states at the same time I would say," said Nisha Verma, a labor and employment attorney in the Southern California office of Dorsey & Whitney. "So you really similar laws coming up in New York, Washington and some other states simultaneously with California."
California bills target harassment
In California, there are several new laws passed in 2018 that add protections to prevent sexual harassment or sex discrimination in the workplace:
- Senate Bill 1343 lowers the threshold for the state's sexual harassment training requirements for employers. It requires employers with five or more workers to provide sexual harassment training to supervisors and non-supervisorial employees, all by Jan. 1, 2020. Under the 2005 law, the state mandated two hours of mandatory sexual harassment training for all supervisors of employers with 50 or more employees.
- Senate Bill 1300 prohibits employers in California after Jan. 1, 2019, from forcing employees to sign a nondisparagement agreement to release the employer of claims, including for sexual harassment, as a condition for a raise or bonus, or as a condition of employment. That said, there are exceptions when the employees voluntarily agree to waive rights in an agreement. The bill also strengthens sexual harassment training by authorizing employers to provide bystander intervention training.
- Assembly Bill 2770 protects people from the threat of a defamation lawsuit when a sexual harassment allegation to an employer is "based on credible evidence" and without malice. The law was passed after the state's defamation laws were identified as sometimes deterring victims and witnesses from making complaints or communicating information about harassers to others. Also, it protects companies with knowledge of the harassing activity and allows them to warn other potential employers without the threat of a defamation lawsuit.
- Senate Bill 820 applies to private and public employers in California and outlaws secret settlements or nondisclosure agreements of factual information in cases involving allegations of sexual assault, harassment or discrimination. The bill, which takes effect Jan. 1, 2019, also grants claimants in sexual abuse or sex discrimination cases the option to keep their name private.
"In my private mediation practice, I have already seen this new law (SB 820) make a difference in people's bargaining positions when negotiating settlements," said Lisa Klerman, a clinical professor of law and director of the Mediation Clinic at the USC Gould School of Law.
Nondisclosure agreements
Klerman said an email response that once SB 820 goes into effect in California, "employers may not be willing to pay as much for resolving these claims, given that they are now receiving less in the way of a benefit compared with the prior state of the law that allowed for more 'airtight' nondisclosure agreements concerning sexual harassment and sex discrimination allegations."
However, California wasn't alone in clamping down on companies requiring employees to sign nondisclosure agreements as a condition of employment. Others states doing so in the past year were Maryland, Tennessee, Vermont and Washington, according to the National Women's Law Center.
The center also counted more than 100 bills introduced in states in the past year dealing with different kinds of harassment issues, resulting in at least 11 states (and two localities) passing new protections. Many of the new laws go into effect in the new year.
"A number of legislatures with the states looked at their own internal policies and passed legislation to reform their own internal practices," said Johnson.
Mandating women on boards
Meantime, the California bill requiring women representation on corporate boards could lead to other states passing similar legislation.
The board mandate bill, known as state Senate Bill 826, was signed in early October by outgoing Democratic Gov. Jerry Brown and requires every publicly held corporation in California to have a minimum of one woman on its board of directors by the end of 2019. By July 2021, the bill would require a minimum of two women on public company boards in the state with five members and at least three women on boards with six or more.
Experts point out that some European countries already have mandates for female representation on boards but they suggest California's move could lead to other states passing similar laws.
Plastic straws to craft beer
Elsewhere, other new California legislation going into effect in 2019 includes everything from plastic straws and child beverages to craft beer to cash bail.
- Assembly Bill 1884 limits restaurants statewide to giving out single-use straws only upon request of customers. It goes into effect Jan. 1, 2019, and applies to full-service dining establishments but exempts fast food restaurants. Restaurants violating the law could be fined $25 daily for violations, or a maximum of $300 per year.
- Senate Bill 1192 mandates that bundled meals in restaurants primarily targeted and marketed to children have a "healthy" beverage as the drink default option, such as milk, water, sparkling water or flavored water with no added natural or artificial sweeteners. The legislation — aimed at reducing childhood obesity — goes into effect Jan. 1, 2019.
- Senate Bill 1164 raises the amount of spirits California's craft distillers can produce, while also keeping craft distillers below the production levels of the larger brewers. The law also allows craft distillers to operate more like the state's wineries and breweries by giving them the opportunity to sell their products to visitors even when they do not taste the beer.
- Senate Bill 10 does away with California's money bail system for people arrested for criminal offenses and instead uses a system based on individual risk instead of wealth. The new bail process becomes effective Oct. 1, 2019. There are attempts to overturn the new bail law.