Acting on the momentum of the #MeToo and #TimesUp movements, California legislators have leapt into action, putting forward legislation to protect employees who have been subjected to or opposed sexual harassment. They sought to limit confidentiality and nondisparagement provisions, restrict mandatory arbitration, increase recordkeeping and training obligations, extend the statute of limitations, and create individual liability for retaliation. In June, I wrote about the importance and potential impact of these bills in Sexual Harassment Law After #MeToo: Looking to California as a Model, published in the Yale Law Journal Forum.

On September 30, 2018, Governor Brown signed into law a number of the bills aimed at addressing sexual harassment and abuse. He vetoed several others, to the disappointment of employee rights advocates. Overall, however, the new laws are cause for celebration.

Bills Signed into Law

SB 820, The Stand Together Against Non-Disclosures (STAND) Act

SB 820 prohibits confidentiality provisions in the settlement agreement of any civil or administrative action that states a cause of action for: sexual assault; workplace harassment or discrimination based on sex; failure to prevent workplace harassment or discrimination based on sex; sexual harassment in a business, service, or professional relationship; and sex discrimination, harassment, or retaliation by the owner of a housing accommodation. The law permits restrictions on disclosure of the settlement amount. An employee is entitled to request confidentiality. The STAND Act will make it more difficult for employers to support and protect serial harassers.

AB 3109

AB 3109 makes a provision in a contract or settlement agreement void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.

SB 1300

SB 1300 is a comprehensive bill that helps combat sexual harassment in a number of ways. Among other things, it:

• Prohibits nondisparagement agreements that gag employees from disclosing information about sexual harassment and other unlawful acts (often presented to employees at the outset of their employment as a condition of employment);
• Prohibits releases of claims presented in exchange for a raise, bonus, or as a condition of continued employment;
• Holds employers liable for failing to prevent all forms of unlawful harassment by third parties, not just sexual harassment;
• Confirms that prevailing defendants are entitled to fees and costs only when the action is frivolous, notwithstanding CCP section 998. This means that an employee need not fear that if she loses her case, that she may be forced to pay the company’s legal costs;
• Declares legislative intent regarding sex harassment, including that a single incident can constitute sex harassment, even absent extreme circumstances, that an employee’s work performance need not have suffered, and that summary judgment should rarely be granted;
• Makes sexual harassment training more robust.

AB 1619

AB 1619 increases the statute of limitations for civil action for sexual assault of an adult to