The Expanding Meaning of “Zero Tolerance”

The #MeToo movement has prompted the California Legislature to expand employer liability for harassment of employees and other specified persons effective January 1, 2019, making it far easier for workers to sue and bring their cases to trial.

Release and Waiver Agreements Prohibited: Except for certain negotiated settlement agreements that resolve an underlying claim filed in or with a court, arbitration, administrative agency, or through the employer’s internal complaint process, employers may not require employees — in exchange for a raise, bonus or as a condition of employment or continued employment — to sign a release of harassment, discrimination or retaliation claims, including a statement that the individual does not possess any such claim or injury against the employer. (Government Code 12964.5)

Restricted Non-Disparagement and Nondisclosure Agreements:  Subject to the same exceptions described above, employers shall not require an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. (Government Code 12964.5)

Protected Right to Testify:  No contract or settlement agreement entered into on or after January 1, 2019 may include a waiver of any party’s right to testify in response to a court order, subpoena, or formal written request in an administrative, legislative or judicial proceeding concerning the other party’s — or its agents or employees — alleged criminal conduct or alleged sexual harassment. (Civil Code 1670.11)

Expanded Employer Liability for Any Type of Harassment: If an employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action, that employer  may now be held responsible for nonemployees’ (e.g., subcontractors, customers) acts with respect to any form of unlawful harassment, not just sexual harassment, of its employees, applicants, interns, volunteers, or independent contractors.  (Government Code 12940)

Best practices:

  • Update all hiring agreements in January 2019
  • Update harassment policies in January 2019
  • Consider implementing the optional bystander training
  • Seek legal advice before entering into any settlement agreements

Our updated 2019 model forms include employment applications, arbitration agreement, contract for at-will employment, paid sick leave policies, termination documents and more.

Contact our client service representative Loretta Gardea for pricing and order information at clientservices@tbowleslaw.com.

See also:

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

January 7, 2019

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