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AB-3081 Employment: sexual harassment.(2017-2018)

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Date Published: 03/23/2018 04:00 AM
AB3081:v98#DOCUMENT

Amended  IN  Assembly  March 22, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 3081


Introduced by Assembly Member Gonzalez Fletcher

February 16, 2018


An act to amend Sections 230 and 2810.3 of, and to add Chapter 4.7 (commencing with Section 1080) to Part 3 of Division 2 of, the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 3081, as amended, Gonzalez Fletcher. Employment. Employment: sexual harassment.
Existing law prohibits an employer from discharging or in any manner discriminating or retaliating against an employee because of the employee’s status as a victim of domestic violence, sexual assault, or stalking, if the victim provides notice to the employer of the status or the employer has actual knowledge of the status. Existing law authorizes an employee to file a complaint with the Division of Labor Standards Enforcement for a violation of that prohibition within 1 year from the date of occurrence of the violation. Existing law makes it a misdemeanor for an employer to refuse to rehire, promote, or restore an employee who has been determined to be so eligible by a grievance procedure or legal hearing.
This bill would similarly prohibit an employer from discharging or in any manner discriminating or retaliating against an employee because of the employee’s status as a victim of sexual harassment. The bill would establish a rebuttable presumption of unlawful retaliation if an employer takes specific actions within 90 days following the date an employee files a sexual harassment claim. The bill would authorize an employee to file a complaint with the division for a violation of that prohibition within 3 years from the date of occurrence of the violation. By expanding the definition of a crime, this bill would impose a state-mandated local program.
The California Fair Employment and Housing Act (FEHA) makes specified employment practices unlawful, including the harassment of an employee directly by the employer or indirectly by agents of the employer with the employer’s knowledge. FEHA requires the Department of Fair Employment and Housing to provide employers with a poster and an information sheet regarding sexual harassment and requires employers to post the poster in an accessible area of the workplace and either distribute the information sheet to employees or provide equivalent information with prescribed components. FEHA authorizes the department to seek an order requiring the employer to comply with the poster and information requirements if an employer violates those requirements.
FEHA requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.
This bill would require an employer, at the time of hiring and regularly on an annual basis thereafter, to provide to each employee a written notice that includes prescribed information about sexual harassment. The bill would require an employer with more than 25 employees to train all nonsupervisory employees at the time of hire, and at least once every two years thereafter, in identifying, preventing, and reporting sexual harassment in the workplace. The bill would require the sexual harassment prevention training to include specific components.
The bill would also require the Labor Commissioner to establish a 24-hour hotline to serve as an informational resource to workers regarding protections under the Labor Code for sexual harassment in the workplace, including, but not limited to, determining what constitutes sexual harassment or retaliation in the workplace and the administrative and legal procedures available to address these issues. The bill would require the Labor Commissioner to create the means for the submission of allegations of sexual harassment or sexual assault in the workplace both by transmission via mail or other carrier to a specified mailing address and electronic submission through an Internet Web site portal. The bill would authorize the Labor Commissioner to adopt regulations to implement the hotline and reporting provisions.
Existing law requires a client employer, as defined, to share with a labor contractor, as defined, all civil legal responsibility and civil liability for all workers supplied by that labor contractor for the payment of wages and the failure to obtain valid workers’ compensation coverage.
This bill would require a client employer to share with a labor contractor all civil legal responsibility and civil liability for sexual harassment of, sexual discrimination against, or sexual assault of, a worker by the labor contractor or another worker.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, the California Fair Employment and Housing Act, makes specified employment practices unlawful, including discrimination against or harassment of employees, among others.

This bill would state the intent of the Legislature to enact legislation that would, among other things, ensure there is adequate time for an employee to report claims of retaliation should an employee’s rights to lodge complaints regarding sexual harassment and assault be violated or met with an adverse action.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 230 of the Labor Code is amended to read:

230.
 (a) An employer shall not discharge or in any manner discriminate against an employee for taking time off to serve as required by law on an inquest jury or trial jury, if the employee, prior to taking the time off, gives reasonable notice to the employer that the employee is required to serve.
(b) An employer shall not discharge or in any manner discriminate or retaliate against an employee, including, but not limited to, an employee who is a victim of a crime, for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding.
(c) An employer shall not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work to obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child.
(d) (1) As a condition of taking time off for a purpose set forth in subdivision (c), the employee shall give the employer reasonable advance notice of the employee’s intention to take time off, unless the advance notice is not feasible.
(2) When an unscheduled absence occurs, the employer shall not take any action against the employee if the employee, within a reasonable time after the absence, provides a certification to the employer. Certification shall be sufficient in the form of any of the following:
(A) A police report indicating that the employee was a victim of domestic violence, sexual assault, or stalking.
(B) A court order protecting or separating the employee from the perpetrator of an act of domestic violence, sexual assault, or stalking, or other evidence from the court or prosecuting attorney that the employee has appeared in court.
(C) Documentation from a licensed medical professional, domestic violence counselor, as defined in Section 1037.1 of the Evidence Code, a sexual assault counselor, as defined in Section 1035.2 of the Evidence Code, licensed health care provider, or counselor that the employee was undergoing treatment for physical or mental injuries or abuse resulting in victimization from an act of domestic violence, sexual assault, or stalking.
(3) To the extent allowed by law and consistent with subparagraph (D) of paragraph (7) of subdivision (f), the employer shall maintain the confidentiality of any employee requesting leave under subdivision (c).
(e) An employer shall not discharge or in any manner discriminate or retaliate against an employee because of the employee’s status as a as either of the following:
(1) A victim of domestic violence, sexual assault, or stalking, if the victim provides notice to the employer of the status or the employer has actual knowledge of the status.
(2) A victim of sexual harassment, if the victim provides notice to the employer of the status or the employer has actual knowledge of the status. There shall be a rebuttable presumption of unlawful retaliation for purposes of this paragraph if an employer, within 90 days following the date an employee files a sexual harassment claim, denies, discharges, threatens to discharge, demotes, suspends, or in any manner discriminates against the employee for exercising the rights of the employee as set forth in this paragraph, for the employee’s cooperation in an investigation or prosecution of an alleged violation of this subdivision, or for the employee’s opposition to a policy, practice, or act prohibited by this paragraph.
(f) (1) An employer shall provide reasonable accommodations for a victim of domestic violence, sexual assault, or stalking who requests an accommodation for the safety of the victim while at work.
(2) For purposes of this subdivision, reasonable accommodations may include the implementation of safety measures, including a transfer, reassignment, modified schedule, changed work telephone, changed work station, installed lock, assistance in documenting domestic violence, sexual assault, or stalking that occurs in the workplace, an implemented safety procedure, or another adjustment to a job structure, workplace facility, or work requirement in response to domestic violence, sexual assault, or stalking, or referral to a victim assistance organization.
(3) An employer is not required to provide a reasonable accommodation to an employee who has not disclosed his or her status as a victim of domestic violence, sexual assault, or stalking.
(4) The employer shall engage in a timely, good faith, and interactive process with the employee to determine effective reasonable accommodations.
(5) In determining whether the accommodation is reasonable, the employer shall consider an exigent circumstance or danger facing the employee.
(6) This subdivision does not require the employer to undertake an action that constitutes an undue hardship on the employer’s business operations, as defined by Section 12926 of the Government Code. For the purposes of this subdivision, an undue hardship also includes an action that would violate an employer’s duty to furnish and maintain a place of employment that is safe and healthful for all employees as required by Section 6400 of the Labor Code.
(7) (A) Upon the request of an employer, an employee requesting a reasonable accommodation pursuant to this subdivision shall provide the employer a written statement signed by the employee or an individual acting on the employee’s behalf, certifying that the accommodation is for a purpose authorized under this subdivision.
(B) The employer may also request certification from an employee requesting an accommodation pursuant to this subdivision demonstrating the employee’s status as a victim of domestic violence, sexual assault, or stalking. Certification shall be sufficient in the form of any of the categories described in paragraph (2) of subdivision (d).
(C) An employer who requests certification pursuant to subparagraph (B) may request recertification of an employee’s status as a victim of domestic violence, sexual assault, or stalking every six months after the date of the previous certification.
(D) Any verbal or written statement, police or court record, or other documentation provided to an employer identifying an employee as a victim of domestic violence, sexual assault, or stalking shall be maintained as confidential by the employer and shall not be disclosed by the employer except as required by federal or state law or as necessary to protect the employee’s safety in the workplace. The employee shall be given notice before any authorized disclosure.
(E) (i) If circumstances change and an employee needs a new accommodation, the employee shall request a new accommodation from the employer.
(ii) Upon receiving the request, the employer shall engage in a timely, good faith, and interactive process with the employee to determine effective reasonable accommodations.
(F) If an employee no longer needs an accommodation, the employee shall notify the employer that the accommodation is no longer needed.
(8) An employer shall not retaliate against a victim of domestic violence, sexual assault, or stalking for requesting a reasonable accommodation, regardless of whether the request was granted.
(g) (1) An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has taken time off for a purpose set forth in subdivision (a) or (b) shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.
(2) An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer for reasons prohibited in subdivision (c) or (e), or because the employee has requested or received a reasonable accommodation as set forth in subdivision (f), shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, as well as appropriate equitable relief.
(3) An employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure or hearing authorized by law is guilty of a misdemeanor.
(h) (1) An employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has exercised his or her rights as set forth in subdivision (a), (b), (c), (e), or (f) may file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations pursuant to Section 98.7.
(2) Notwithstanding any time limitation in Section 98.7, an employee may file a complaint with the division based upon a violation of subdivision (c), (e), (c) or (f) within one year from the date of occurrence of the violation.
(3) Notwithstanding any time limitation in Section 98.7, an employee may file a complaint with the division based upon a violation of subdivision (e) as follows:
(i) With regard to domestic violence, sexual assault, or stalking, within one year from the date of occurrence of the violation.
(ii) With regard to sexual harassment, within three years from the date of occurrence of the violation.
(i) An employee may use vacation, personal leave, or compensatory time off that is otherwise available to the employee under the applicable terms of employment, unless otherwise provided by a collective bargaining agreement, for time taken off for a purpose specified in subdivision (a), (b), or (c). The entitlement of any employee under this section shall not be diminished by any collective bargaining agreement term or condition.
(j) For purposes of this section:
(1) “Domestic violence” means any of the types of abuse set forth in Section 6211 of the Family Code, as amended.
(2) “Sexual assault” means any of the crimes set forth in Section 261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269, 273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code, as amended.
(3) “Stalking” means a crime set forth in Section 646.9 of the Penal Code or Section 1708.7 of the Civil Code.

SEC. 2.

 Chapter 4.7 (commencing with Section 1080) is added to Part 3 of Division 2 of the Labor Code, to read:
CHAPTER  4.7. Sexual Harassment

1080.
 (a) At the time of hiring and regularly on an annual basis thereafter, an employer shall provide to each employee a written notice, in the language the employer normally uses to communicate employment-related information to the employee, containing the following information:
(1) The illegality of sexual harassment.
(2) The definition of sexual harassment under applicable state and federal law.
(3) A description of sexual harassment, utilizing examples.
(4) The internal complaint process of the employer available to the employee.
(5) The legal remedies and complaint process available through the Department of Fair Employment and Housing.
(6) Directions for how to contact the Department of Fair Employment and Housing and the office of the Labor Commissioner.
(7) That an employee cannot be terminated or retaliated against for his or her status as a victim of sexual harassment if the victim provides notice to the employer or if the employer has actual knowledge of the status, or for filing a complaint of sexual harassment against the employer.
(8) That there is a presumption of retaliation for certain employer actions taken within 90 days after the employee has filed a sexual harassment complaint.
(9) That the employee has three years to file a complaint against an employer who retaliates after the employee files a sexual harassment complaint, beginning on the date the employee is subjected to the retaliatory action.
(10) Any other information the Labor Commissioner deems material and necessary.
(b) The Labor Commissioner shall prepare a template that complies with subdivision (a). The template shall be made available to employers in a manner determined by the Labor Commissioner.
(c) An employer shall deliver the written notice pursuant to subdivision (a) in a manner that ensures distribution to each employee, including, but not limited to, an information sheet based on the template prepared pursuant to subdivision (b) or information included with an employee’s pay.

1081.
 (a) An employer with more than 25 employees shall train all nonsupervisory employees at the time of hire, and at least once every two years thereafter, in identifying, preventing, and reporting sexual harassment in the workplace.
(b) Sexual harassment training for each nonsupervisorial employee shall be in the language understood by that employee. The person may comply with this language requirement either by providing the training in that language or by having the training interpreted for the employee in the language that he or she understands.
(c) Sexual harassment prevention training shall include, at a minimum, components of the following as consistent with Section 12950 of the Government Code:
(1) The illegality of sexual harassment.
(2) The definition of sexual harassment under applicable state and federal law.
(3) A description of sexual harassment, utilizing examples.
(4) The internal complaint process of the employer available to the employee.
(5) The legal remedies and complaint process available through the Department of Fair Employment and Housing and the office of the Labor Commissioner.
(6) Directions for how to contact the Department of Fair Employment and Housing and the office of the Labor Commissioner.
(7) The protection against retaliation provided under current law.
(d) The trainer may use the text of the Department of Fair Employment and Housing’s pamphlet DFEH-185, “Sexual Harassment,” as a guide to training, or may use other written material or other training resources covering the information required in subdivision (c).
(e) At the conclusion of the training, the trainer shall provide the employee with a copy of the Department of Fair Employment and Housing’s pamphlet DFEH-185, and a record of the training on a form provided by the Labor Commissioner that includes the name of the trainer and the date of the training.
(f) The employer shall keep a record with the names of all employees who have received sexual harassment training for a period of three years.

1082.
 (a) The Labor Commissioner shall establish a 24-hour hotline to serve as an informational resource to workers regarding protections in this code for sexual harassment in the workplace, including, but not limited to, determining what constitutes sexual harassment or retaliation in the workplace and the administrative and legal procedures available to address these issues.
(b) The Labor Commissioner shall create the means for the submission of allegations of sexual harassment or sexual assault in the workplace both by transmission via mail or other carrier to a specified mailing address and electronic submission through an Internet Web site portal. The Labor Commissioner may request that a person submitting an allegation provide his or her name and contact information and provide the names and contact information for any persons who could help to substantiate the claim. However, the Labor Commissioner shall not require any person submitting an allegation to provide his or her name or contact information and shall clearly state on the agency Internet Web site that this information is not required in order to submit an allegation.
(c) The Labor Commissioner may adopt regulations to implement this section.

SEC. 3.

 Section 2810.3 of the Labor Code is amended to read:

2810.3.
 (a) As used in this section:
(1) (A) “Client employer” means a business entity, regardless of its form, that obtains or is provided workers to perform labor within its usual course of business from a labor contractor.
(B) “Client employer” does not include any of the following:
(i) A business entity with a workforce of fewer than 25 workers, including those hired directly by the client employer and those obtained from, or provided by, any labor contractor.
(ii) A business entity with five or fewer workers supplied by a labor contractor or labor contractors to the client employer at any given time.
(iii) The state or any political subdivision of the state, including any city, county, city and county, or special district.
(2) “Labor” has the same meaning provided by Section 200.
(3) “Labor contractor” means an individual or entity that supplies, either with or without a contract, a client employer with workers to perform labor within the client employer’s usual course of business. “Labor contractor” does not include any of the following:
(A) A bona fide nonprofit, community-based organization that provides services to workers.
(B) A bona fide labor organization or apprenticeship program or hiring hall operated pursuant to a collective bargaining agreement.
(C) A motion picture payroll services company as defined in subparagraph (A) of paragraph (4) of subdivision (f) of Section 679 of the Unemployment Insurance Code.
(D) A third party who is a party to an employee leasing arrangement, as defined by Rule 4 of Section V of the California Workers’ Compensation Experience Rating Plan-1995 (Section 2353.1 of Title 10 of the California Code of Regulations), as it read on January 1, 2014, except those arrangements described in subrule d of Rule 4 of Section V, if the employee leasing arrangement contractually obligates the client employer to assume all civil legal responsibility and civil liability under this act.
(4) “Wages” has the same meaning provided by Section 200 and all sums payable to an employee or the state based upon any failure to pay wages, as provided by law.
(5) “Worker” does not include an employee who is exempt from the payment of an overtime rate of compensation for executive, administrative, and professional employees pursuant to wage orders by the Industrial Welfare Commission described in Section 515.
(6) “Usual course of business” means the regular and customary work of a business, performed within or upon the premises or worksite of the client employer.
(b) A client employer shall share with a labor contractor all civil legal responsibility and civil liability for all workers supplied by that labor contractor for both of the following:
(1) The payment of wages.
(2)
 Failure to secure valid workers’ compensation coverage as required by Section 3700.
(3) Sexual harassment of, sexual discrimination against, or sexual assault of, a worker by a labor contractor or another worker.
(c) A client employer shall not shift to the labor contractor any legal duties or liabilities under Division 5 (commencing with Section 6300) with respect to workers supplied by the labor contractor.
(d) At least 30 days prior to filing a civil action against a client employer for violations covered by this section, a worker or his or her representative shall notify the client employer of violations under subdivision (b).
(e) Neither the client employer nor the labor contractor may take any adverse action against any worker for providing notification of violations or filing a claim or civil action.
(f) The provisions of subdivisions (b) and (c) are in addition to, and shall be supplemental of, any other theories of liability or requirement established by statute or common law.
(g) This section does not prohibit a client employer from establishing, exercising, or enforcing by contract any otherwise lawful remedies against a labor contractor for liability created by acts of a labor contractor.
(h) This section does not prohibit a labor contractor from establishing, exercising, or enforcing by contract any otherwise lawful remedies against a client employer for liability created by acts of a client employer.
(i) Upon request by a state enforcement agency or department, a client employer or a labor contractor shall provide to the agency or department any information within its possession, custody, or control required to verify compliance with applicable state laws. Upon request, these records shall be made available promptly for inspection, and the state agency or department shall be permitted to copy them. This subdivision does not require the disclosure of information that is not otherwise required to be disclosed by employers upon request by a state enforcement agency or department.
(j) The Labor Commissioner may adopt regulations and rules of practice and procedure necessary to administer and enforce the provisions of subdivisions (b) and (i) that are under his or her jurisdiction.
(k) The Division of Occupational Safety and Health may adopt regulations and rules of practice and procedure necessary to administer and enforce the provisions of subdivisions (c) and (i) that are under its jurisdiction.
(l) The Employment Development Department may adopt regulations and rules of practice and procedure necessary to administer and enforce the provisions of subdivisions (b) and (i) that are under its jurisdiction.
(m) A waiver of this section is contrary to public policy, and is void and unenforceable.
(n) This section shall not be interpreted to impose individual liability on a homeowner for labor or services received at the home or the owner of a home-based business for labor or services received at the home.
(o) This section shall not be interpreted to impose liability on a client employer for the use of an independent contractor other than a labor contractor or to change the definition of independent contractor.
(p) This section shall not be interpreted to impose liability on the following:
(1) A client employer that is not a motor carrier of property based solely on the employer’s use of a third-party motor carrier of property with interstate or intrastate operating authority to ship or receive freight.
(2) A client employer that is a motor carrier of property subcontracting with, or otherwise engaging, another motor carrier of property to provide transportation services using its own employees and commercial motor vehicles, as defined in Section 34601 of the Vehicle Code.
(3) A client employer that is not a household goods carrier based solely on the employer’s use of a third-party household goods carrier permitted by the Public Utilities Commission pursuant to Chapter 7 (commencing with Section 5101) of Division 2 of the Public Utilities Code to move household goods.
(4) A client employer that is a household goods carrier permitted by the Public Utilities Commission pursuant to Chapter 7 (commencing with Section 5101) of Division 2 of the Public Utilities Code subcontracting with, or otherwise engaging, another permitted household goods carrier to provide transportation of household goods using its own employees and motor vehicles, as defined in Section 5108 of the Public Utilities Code.
(5) A client employer that is a cable operator as defined by Section 5830 of the Public Utilities Code, a direct-to-home satellite service provider, or a telephone corporation as defined by Section 234 of the Public Utilities Code, based upon its contracting with a company to build, install, maintain, or perform repair work utilizing the employees and vehicles of the contractor if the name of the contractor is visible on employee uniforms and vehicles.
(6) A motor club holding a certificate of authority issued pursuant to Chapter 2 (commencing with Section 12160) of Part 5 of Division 2 of the Insurance Code when it contracts with third parties to provide motor club services utilizing the employees and vehicles of the third-party contractor if the name of the contractor is visible on the contractor’s vehicles.

SEC. 4.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
SECTION 1.

It is the intent of the Legislature to enact legislation that would accomplish the following:

(a)Make all persons aware of their rights and protections established in state laws through regular training to protect employees from sexual harassment and assault and ensures that employees have accessible channels through which to address and report these issues if their safety in the workplace has been compromised.

(b)Ensure there is adequate time for an employee to report claims of retaliation should an employee’s rights to lodge complaints regarding sexual harassment and assault be violated or met with an adverse action.