work it: What California Employers Should Know About New Laws for 2019.

• Author: Terman, Mark E.

As the #MeToo movement gained momentum to right the wrongs of sexual harassment alleged against Hollywood, business and politicians, so too has the California Legislature responded by declaring, in essence, #TimesUp.

Of the nearly 600 bills introduced in 2018 that mention "employer," (compared to 304 bills in 2017) 455 mentioned "sexual harassment," (compared to 347 the prior year). While most of those bills did not pass, and of the ones that did. Gov Brown did not sign them into law, many of the new laws will have significant impact on our state.

Essential elements of key state assembly bills (AB) and senate bills (SB) that became law affecting private employers, effective Jan. 1, 2019, unless otherwise noted, follow.

Women on Boards of Directors

SB 826 is the nation's first law that mandates female membership on boards of directors. By Dec. 31, 2019, it requires publicly held corporations (domestic or foreign, listed on a major U.S. stock exchange) whose executive offices are located in California (according to the corporation's SEC 10-K form) to have a minimum of one female director on its board of directors. No later than Dec. 31, 2021, the minimum number of required female directors increases to two if the corporation has five directors, or to three if the corporation has six or more directors.

"Female" under this bill means, "an individual who self-identifies her gender as a woman, without regard to the individual's designated sex at birth."

By July 1, 2019, the California Secretary of Stale is required to publish a report on its website documenting the number of corporations that have at least one female director. By March 1, 2020, and annually thereafter, the Secretary of State must publish a report on its website regarding at least the following:

* The number of corporations subject to this section that were in compliance during at least one point of the preceding calendar year;

* The number of publicly held corporations that moved their United States headquarters to California from another state or out of California into another state during the preceding calendar year; and

* The number of publicly held corporations that were subject to this section during the preceding year, but arc no longer publicly traded.

Finally, SB 826 authorizes the Secretary of State to impose fines for violations as follows:

* $100,000 for failure lo timely file board member information with the Secretary of State;

* $100,000 for a first violation; and

* $300,000 for a second or subsequent violation.

This bill adds secs. 301.3 and 2115.5 to the Corporations Code.

Responding to Inquiry of Alleged Past Sexual Harassment

Existing law authorizes an employer to inform a prospective employer whether or not the employer would rehire the employee. This communication is deemed privileged and protected from a lawsuit for defamation under Civil Code Sec. 47 if done without malice.

AB 2770 amends Sec. 47 to add among those privileged communications the following:

* Complaints of sexual harassment by an employee--without malice--to an employer based on credible evidence;

* Communications between the employer and interested persons--without malice--regarding a complaint of sexual harassment; and

* Communications by the employer--without malice--whether the employer's decision to not rehire the employee is based on the employer's determination that the former employee engaged in sexual harassment.

The intended effect of this bill is to protect victims of sexual harassment and employers from defamation claims by an alleged harasser when an employer conducts an internal investigation or a pre-employment background check.

No Contracts to Block Testimony about Sexual Harassment

Adding Sec. 1670.11 to the Civil Code, AB 3 109 makes void and unenforceable a provision in a contract or settlement agreement that waives a party's right to testify in an administrative, legislative or judicial proceeding, if required or requested by court order, subpoena or administrative or legislative request, concerning alleged criminal conduct or sexual harassment.

The intended effect of this bill is to limit secrecy that often accompanies settlements of sexual harassment claims as well as ordinary confidentiality agreements that cover personnel matters.

More Prohibition Against Sexual Harassment in Professional Relationships

In addition to employment relationships, California law also prohibits sexual harassment by providers in business, service and professional relationships--such as accountants, doctors, psychotherapists, lawyers, social workers, real estate agents, bankers, builders...