“California Must Continue To Lead And Protect Workers When Companies Fail Or Refuse To Do So.”
If you haven’t yet heard, Governor Gavin Newsom signed 15 bills this past week in effort to fulfill his campaign promises of increasing protection for California’s workforce. Among the bills signed, we will discuss the importance and background of two anti-harassment bills that have been heavily advocated for by prominent Hollywood and #MeToo figures, including Alyssa Milano, Gretchen Carlson, Rosanna Arquette and Tarana Burke.
AB 9, otherwise known as the Stop Harassment and Reporting Extension Act (SHARE), extends the deadline to file harassment and discrimination claims under the California Fair Employment and Housing Act (FEHA) from one year to three years. AB 51 bans mandatory arbitration in an employment relationship. Governor Newsom states:
“Work is about more than earning an income. For many, a job can provide a sense of purpose and belonging – the satisfaction of knowing your labor provides value to the world. Everyone should have the ability to feel that pride in what they do, but for too many workers, they aren’t provided the dignity, respect or safety they deserve. These laws will help change that.”
Assembly Bill 51
Mandatory arbitration provisions have been a dominant factor in employment relationships in California. More than half of Americans in the workforce have been required to sign arbitration agreements as a condition of their employment – meaning they will be terminated or not hired if they refuse to sign. In California, more than 67% of the workforce has been subjected to forced arbitration, according to a recent study by Economic Policy Institute (EPI). The terms under a mandatory arbitration clause drastically limit an employee’s legal options once their rights have been violated. Almost all of these arbitration clauses make it impossible for employees to sue their employer for wrongdoing and must instead submit to an arbitration proceeding that is notoriously favorable to businesses and employers (as they are the paying, repeat customers).
In effort to protect victims of workplace harassment or other violations from forced arbitration, AB 51 prohibits employers from requiring employees to waive their right to sue for a FEHA or Labor Code violation as a condition of employment or employment-related benefits. This bill also extends to applicants for employment. Employers are also prohibited from retaliating, discriminating against, threatening, or terminating employees or applicants if they refuse to waive their rights.
Why This Bill Matters
A huge issue with mandatory arbitration is that it allows harassment and other violations to continue, as companies can force these claims out of court and the public record and into secretive arbitration which where all proceedings are deemed confidential. This bill aims to prevent repeat sexual offenders, such as Bill Cosby and Roger Ailes, from continuing their illegal behavior. Thus, starting in January 2020, the only way an employer in California can enter into an arbitration agreement with an employee is if that employee voluntarily chooses to enter into such an agreement. If the employee refuses to waive their rights, AB 51 prohibits employers from retaliating against that employee.
Assembly Bill 9
The other bill Gov. Newsom signed was Assembly Bill 9, otherwise known as the Stop Harassment and Reporting Extension Act (SHARE). Introduced by Assemblywoman Eloise Reyes. AB 9 extends the period of time an employee has to file a discrimination or harassment claim with the Department of Fair Employment and Housing (DFEH). Previously, the statute of limitations was one year from the date of the incident (of harassment, discrimination, or retaliation). In other words, before filing a civil action against an employer, an employee must first file a verified complaint with the DFEH within one year from the date the alleged unlawful conduct occurred. AB 9 is amended to give victims of FEHA violations up to three years to pursue their claims.
Why This Bill Matters
An issue that has been raised about AB 9’s potential impact on litigation of employment disputes is how the extension of the statute of limitations may make an employee feel less inclined to try to resolve a dispute right after it happens or in a timely manner. This, in turn, could make the litigation process more difficult due to problematic evidentiary issues, such as witness memories fading and the preservation of other documentary evidence. Opponents of AB 9 don’t take into consideration that victims of sexual assault are slower to process the trauma than other forms of discrimination and harassment. Advocates for AB 9 state that the statute of limitations for victims of harassment and discrimination should have the additional time to file their claims, as most other claims have longer filing deadlines beyond one year. For example, personal injury actions have a two year statute of limitations, while actions for fraud have up to three years. Additionally, the extension allows the parties in dispute to gain additional time to resolve grievances outside of court, without needing to file a claim solely to meet the one-year deadline.
On another note, low wage earners are the most affected by the short filing time, as they are usually unaware of their legal rights and the time limit to file a claim. There have been many instances where these workers learn of their rights after statute has already expired. AB 9 will give victims of civil rights violations additional time to seek administrative and civil remedies.
AB 9 was initially designed to protect the victims of the #MeToo movement but also extends to victims of all other forms of discrimination and harassment. Since victims of sexual harassment or assault need time to digest what they have experienced, AB 9 has been a central focus for the #MeToo movement, generating effort over the last few years to increase the statute of limitations for bringing sexual harassment claims. A committee analysis highlights the reasoning behind the extension as follows:
“Among many other things, the #MeToo movement has shed light on the fact that it often takes time, courage, and support for victims of sexual harassment and sexual violence to feel comfortable making public allegations against the perpetrator of their abuse. Voices from the #MeToo movement have articulated a number of reasons for this delay. Some victims need time to process before they fully grasp what has happened to them. Some victims only realize what happened when other victims come forward and a pattern of abusive behavior becomes evident. Some victims immediately know they have been harassed or assaulted, but are not immediately ready to confront their perpetrator. Many victims fear retaliation if they do come forward.”
Lili Bernard, a victim of Bill Cosby, stated:
“We’re using the celebrity of our unfortunate trauma to really just transform our trauma to triumph for future generations. Even three years is a really short time. It takes time for the victim of sexual harassment or sexual assault to process the trauma, it takes time for the time to—it’s just a tremendous process where you feel safe enough to actually speak up.”
Ms. Bernard was instrumental in gaining celebrity support to pen a letter, alongside #MeToo activists Mira Sorvino and Jessica Barth, to Gov. Newsom regarding the passage of AB 9 and AB 51. In the letter, it states:
“Many victims of Sexual Harassment do not even recognize that the harm inflicted upon them is against the law; those who do, most often need time…before they are ready to speak out about their abuse. We are at a pivotal moment in history, when such a heightened awareness of the abuse of power needs to lead to concrete action!”
While these new California laws provide victims of sexual harassment and other forms of FEHA violations more security in their workplace, we foresee many challenges to come in the litigation process. There are many workers who are unaware of the their legal rights in the workplace. While the future of AB 9 and AB 51 may become contentious, hopefully an indirect consequence of it will be spreading awareness and knowledge.