The California legislature has responded to recent high-profile allegations of sexual harassment with multiple bills. One, which has already been signed by Gov. Jerry Brown, protects both harassment victims and employers from defamation claims. Other bills now pending before the Senate and Assembly would, if passed, expand the definition of harassment; increase employers’ obligations to provide harassment prevention training; guarantee time off to employees who need to obtain care for themselves or family members as the result of sexual harassment; change the statute of limitations and burden of proof for certain harassment claims; and severely restrict an employer’s ability to recover legal costs after successfully defending a sexual harassment complaint.

Protection for Complaints, Investigations, and Employment References

Employees who complain to their employer about sexual harassment and employer investigations of harassment will be protected against defamation claims. Effective Jan. 1, 2019, Assembly Bill 2770 will amend California Civil Code Section 47, which establishes that certain communications are privileged. To be privileged, the employee complaint must be made to the employer, without malice, and based upon credible evidence. The employer’s investigation, including witness communications, will be protected so long as they are made without malice. In addition, in responding to reference requests from potential employers, a former employer is authorized to explain whether the former employee is eligible for rehire and whether the employer’s decision to refuse rehire is based upon a determination that the former employee engaged in sexual harassment.

Legislative Intent to Protect Workers Against Harassment