Happy New Year ... Please!
Greetings, all! We’re only a few weeks into the new year, but employment lawyers and HR professionals feel like 2019 started months ago. Much of this is due to the rather profound (hyper)activity of our courts and legislators – all of which contributes to the fair state of California receiving the dubious distinction of No. 1 “Judicial Hellhole” in the nation.1
A few possible high (low?) lights for 2019:
- SB 820 – Prevents/restricts confidential settlement agreements in sexual harassment, discrimination and related retaliation actions. The downside: Confidential resolutions which protect the reputation of employers and employees are often a good reason to settle a dispute early. It is now likely that some employers will feel compelled to litigate marginally credible matters to conclusion rather than face the stigma that they settled in the face of liability.
- SB 1300(a) – Expands employer liability for all forms of harassment by non-employees. The downside: Employers are now exposed to liability from third parties over whom they have little or no control.
- SB 1300(b) – The Legislature issued a “declaration of intent” which has the potential to alter the legal standard in hostile workplace claims from the recognized “severe or pervasive” to permitting a single incident of harassing conduct to create a triable issue. The declaration indicates that “discriminatory remarks” unrelated to an employment decision or by non-decision-makers are relevant to prove discrimination. The Legislature also stated its belief that harassment cases are rarely appropriate for summary judgment. The downside: Well, plaintiff attorneys are salivating.
- SB 1343 – Expands comprehensive harassment prevention training to all employers with five or more employees. Previously the training requirement (two hours) only applied to supervisors in organizations with 50+ employees. It now also requires training all employees (one hour) as well as supervisors. This training must generally be completed by January 1, 2020 and repeated every two years, or within six months for new hires. The downside: Yes, one more administrative burden on employers. That said, #MeToo is here to stay. Prudent employers must acknowledge that the movement is now part of the workplace culture. The training required by this bill, while somewhat burdensome, will help prevent the type of behavior that leads to lawsuits.
There are also some zombie employment-related bills, previously vetoed by Governor Brown, that refuse to die:
- AB 170 – Would create joint employer liability for harassment against contractors or temp workers. The downside: Imposition of statutory joint employer liability can impose responsibility for conduct of third parties the employer doesn't control.
- AB 171 – Would create a presumption of retaliation when an employee is terminated within 90 days after reporting sexual harassment. The downside: An unethical and borderline employee can easily buy themselves 90 days or more simply by raising a claim of harassment.
With all this depressing news, is there anything positive on the horizon? Definitely maybe. One of the most abused statutes within the world of employment litigation is PAGA (Private Attorney General Act), which we like to call the “Lawyers Full Employment Law.” PAGA empowers private attorneys to file representative actions for multiple parties, and obtain substantial penalties and attorneys’ fees for correcting, in some cases, unnoticed and good-faith clerical errors by employers. Often the legal fees awarded to the plaintiff attorneys vastly exceed the damages their clients receive. But something is finally being done. A courageous group known as the California Business and Industrial Alliance has sued the California Attorney General, seeking to enjoin PAGA as unconstitutional. In their complaint they allege that “PAGA [has] become a tool of extortion and abuse by the Plaintiff’s Bar.” From their mouths to God’s ears….
With all this recent legislation and litigation recently, some good news is certainly past due. Perhaps the challenge to PAGA will succeed, or maybe some of those zombie bills will finally meet their justifiable end. Here's hoping that with a little luck we can surrender our top slot in the Judicial Hellhole rankings.
Stephanie M. Stringer, Hall Griffin, Associate
John A Cone, Jr., Hall Griffin, Of Counsel
1. Yes, it really is a “thing:”