Workplace harassment bills revived in new Legislature

Core tenets of a #MeToo bill vetoed by the governor last fall have been reintroduced as separate bills, for consideration under the new administration and Democratic supermajority.

Assembly Bills 170 and 171 would make employers jointly liable for harassment against contractors or temporary workers on the job and introduce a presumption of retaliation when an employee is fired after reporting sexual harassment, respectively.

Assemblywoman Lorena Gonzalez, D-San Diego, introduced both on Tuesday. In a press release, she said the bills protect low-income female workers.

“It’s time that the transformative changes driven by the #MeToo movement made a difference in the lives of all women, not just those in Hollywood or the halls of the Capitol,” Gonzalez said in the statement.

“Janitors, hotel and restaurant workers, service workers and immigrants continue to be exploited and harassed at work while their employers deny responsibility,” she said. “Workplace protections should extend to all women, no matter their economic standing, access to an attorney or level of existing power.”

Gonzalez also authored AB 3081, which had the same core ideas. It passed both houses of the Legislature, but former Gov. Jerry Brown vetoed it Sept. 30.

A spokesperson for Gonzalez’s office said AB 3081 was bisected “because they are two separate concepts and now both can be given the breadth and depth that they deserve.”

A significant difference between AB 3081 and its two successors is that the former’s final form placed the presumption of retaliation at 30 days after the worker is fired, whereas 171 sets the time at 90 days.

In his veto statement of AB 3081, Brown wrote that the key protections in the bill are already in current law, and called its joint liability standard “ill-defined.”

According to Mike Arias of Arias Sanguinetti Wang & Torrijos LLP, the bills address an important issue and might find more support with the new administration.

Arias is also the president of the Consumer Attorneys of California, which supported AB 3081 and other #MeToo bills last year. While the organization has not thrown its weight behind Gonzalez’s new bills, he says it likely will.

“We are interested in trying to provide more protections for victims of assault,” he said. “I’m hoping to see more legislation of this type and I think it’s good these types of bills are being brought from across the state.”

Benjamin M. Ebbink of Fisher & Phillips LLP echoed the concerns raised by Brown in his veto of AB 3081, and added some caveats about shifting the burden of proof.

“Fundamentally, employers have concerns about statutory joint employer provisions that automatically impose liability on an employer ostensibly for the actions of another entity they don’t control,” he said of AB 170.

On the topic of presumptive retaliation in AB 171, Ebbink said, “It’s a fundamental issue of burden of proof, so when it shifts, it’s not a small matter.”

He said it could give workers incentives to make bad faith accusations if they believe they are about to be fired. Adding the presumption to the labor code would expose employers to California Private Attorneys General Act lawsuits for claims typically brought under the Fair Employment and Housing Act, he noted.

With the Democratic supermajority and freshly inaugurated Gov. Gavin Newsom, several #MeToo initiatives have been resurrected or reinvigorated.

On Wednesday, Senator Connie M. Leyva, D-Chino, introduced SB 71, which would ban the use of political funds to fight harassment and discrimination claims.

Sponsored by the California Fair Political Practices Commission, SB 71 follows the rescission of a March 2018 advice letter to former state Sen. Tony Mendoza that allowed him to use legal defense and campaign funds to defend sexual harassment claims.

“SB 71 will ensure that elected officials accused of sexual harassment or discrimination are not able to use campaign or legal defense funds as deep pools of money to defend themselves in cases related to this terrible behavior,” Leyva said. “These funds are certainly not intended to help elected officials or candidates avoid personally facing the financial consequences of their alleged actions in hurting another person.”