SB 820, from the 2018 legislative session, concerns a prohibition on confidential settlement agreements.

Governor Jerry Brown signed SB 820 by State Senator Connie Leyva on September 30th as Chapter 953. The bill prohibits a provision within a settlement agreement that prevents the disclosure of factual information related to specified claims or complaints in either a civil action or administrative action.

The bill went into effect January 1, 2019 and it specifically allows plaintiffs in these types of actions to retain the right to request provisions in settlement agreements that shield their identity. Note that the Assembly amendments expanded the claims that are covered by the bill, extended the scope to cover court orders, and also narrowed an exception that’s available at the request of the claimant.

SB 820 makes a provision in the settlement agreement that prevents the disclosure of factual information related to the claim for those agreements entered into on or after 1/1/19 to be void as a matter of law and against public policy. The new law provides that a court may consider the pleadings and other papers in the record or any other findings of the court in determining the factual foundation of the causes of action specified in these provisions.

This new law applies if the claim relates to an act of sexual assault, sexual harassment, workplace harassment, or discrimination based on sex, or retaliation for reporting harassment or discrimination based on sex. It does not prohibit the entry or enforcement of any agreement that includes the disclosure of the amount that was paid in settlement of the claim.

The bill also creates an exception where it is not applicable if a party is a government agency or public official. For a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity if that provision within the settlement agreement that is made at the request of the claimant.

You can find a transcript of today’s podcast here.

 

 

 

 

 

 

 

Governor Jerry Brown signed Assembly Bill 2770 by Assemblywoman Jacqui Irwin into law as Chapter 82 of the Statutes of 2018 on July 9, 2018. The bill’s provisions specifically amended Section 47 of California’s Civil Code and went in to effect on January 1st of this year.

AB 2770 created a limited privilege for employer communications of sexual harassment claims against former employees. AB 2770 amends Civil Code Section 47(c) in two explicit clauses. First it adds a sentence that the particular subdivision applies to and includes a complaint of sexual harassment by an employee without malice to an employer based upon credible evidence and communications between the employer and interested persons, also without malice, regarding a complaint of sexual harassment.

The second clause is that AB 2770 amends the existing law to state that this particular subdivision authorizes a current or former employer, or that employer’s agent, to answer without malice whether or not the employer would rehire a current or former employee and whether that decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment.

Now in explaining this bill to members of the Legislature the Senate Floor Analysis said, “This bill would allow former employers to inform potential employers about whether a decision to terminate or not rehire an individual is based upon the employer’s determination that the former employee engaged in sexual harassment. This bill does not provide an absolute privilege to these types of communications, but a conditional privilege whereby the statements made by the former employers cannot be made with malice.”

This bill was sponsored by the California Chamber of Commerce and in support, the Cal Chamber and some 35 supportive groups wrote that, “AB 2770 codifies case law to ensure victims of sexual harassment and employers are not sued for defamation by the alleged harasser when a complaint of sexual harassment is made and that California’s public policy protects employees from harassment and AB 2770 furthers this particular public interest.”

SB 826 (transcript)

Today’s post is on Senate Bill 826 from the 2018 legislative session concerning California’s new mandate on women on publicly traded corporate boards.

Governor Brown signed SB 826 by State Senator Hannah Beth Jackson on September 30th. It was Chapter 954. It adds two new sections to California’s Corporations Code.

Essentially the new law requires every publicly held corporation whose principal executive offices are located in the state of California to have a specified minimum number of women on its board of directors.

It also requires the California Secretary of State to review and issue reports regarding corporate compliance with the bill’s provisions and authorizes the Secretary of State to impose fines for any violations of that bill.

The Legislature did make some modifications to the bill before they sent it down to the Governor for final action, including the addition of a fine for failure to timely file board member information with the Secretary of State. They modified the dollar amounts of the fines imposed for both the first and subsequent violations of the law.

What the bill essentially states is that no later than March 1, 2020 and annually thereafter, the Secretary of State will publish a report on its website that contains specified information. Again, it authorizes the Secretary of State to impose fines for violations of the bill.

These fines are quite substantial. For failure to timely file board member information the first violation is $100,000. For a second or subsequent violation, the amount goes up to $300,000 per violation.

Section One of the bill, which represents most of the bill’s contents, sets forth numerous legislative findings and decorations. In Section Two of the bill, it adds Section 301.3 to the Corporations Code, which we’ll cover in a moment.

Then it also adds Section 211.5.5 to the Corporations Code that essentially sets forth the requirements that will cover apply to a foreign corporation ‑‑ that is a publicly held corporation ‑‑ to the exclusion of the law, the jurisdiction in which that foreign corporation is incorporated.

What this new section of the Corporations Code says is that no later than the close of the 2019 calendar year, every domestic general corporation or foreign corporation that is publicly held, and whose principle executive office according to the corporation’s SEC 10K form is located in California, must have a minimum of one female on its board of directors.

Thereafter, the bill specifies that no later than the end of the 2021 calendar year, the required minimum number must be two female directors if the corporation has five directors or three female directors if the corporation has six or more directors.

This bill has gotten a lot of press attention and numerous legal scholars have questioned its constitutionality. We’ll have to wait and see once it’s implemented at the end of 2019 whether or not a publicly traded corporation undoubtedly incorporated out of state challenges this new statute.

Earlier this week, The National Law Review recently published the work of McGeorge Capital Lawyering adjunct professor Chris Micheli. You can find Micheli’s aritcle – A Review of 2018 Labor and Employment Legislation in California – here.

Micheli overviews the fourteen major labor and employment bills that were signed into law, as well as seven other significant pieces of legislation that made it through the Legislature but were ultimately vetoed by Governor Brown. Many of the bills that Micheli looks at are pieces of legislation inspired by the #MeToo movement that swept the nation as well as the We Said Enough movement that started here in California’s capital.

Chris Micheli – Attorney; Adjunct Professor, McGeorge School of Law; Principal, Aprea & Micheli

In August 2018, Sonoma City Councilmember Rachel Hundley was attacked by an anonymous group of internet trolls. Their tactic? Take pictures that Rachel had posted on her own Instagram account from Burning Man and combine those with some inflammatory accusations on a website. Their goal? Blackmail Rachel into not running for re-election by threatening to take that website public. In a bold move, Rachel countered their move by taking them on head on, calling them out for slut shaming her and trying to blackmail her into not running for re-election in the era of #MeToo. You can see that response here.

Today, we talk with Councilmember Hundley about that experience, and the additional challenges that she faces both running for and in office as a woman and as a millenial that her male and older counterparts do not have to face.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes, Apple Podcasts, or Stitcher Radio, and subscribe to our show wherever you listen to podcasts. All of that makes The CAP⋅impact Podcast easier to find and more accessible.

You can also stay in touch with us and let us know what you thought about today’s show and think about the show generally on Facebook and Twitter. Just like CAP⋅impact on Facebook or follow @CAPimpactCA on Twitter.

The CAP⋅impact Podcast is made possible by the Capital Center for Law & Policy at McGeorge School of Law in Sacramento, California. You can learn more about the Capital Center here, and keep up with the Capital Center on Facebook and Twitter.

By: Trisha Mannie

After the launch of #MeToo and revelations of many allegations of sexual harassment and assault against Hollywood producer Harvey Weinstein became public, the media’s coverage of how common sexual harassment is in the workplace has become more prevalent.  Famous women are sharing their experiences and using their status to encourage other women to do the same, resulting in a drastic rise in awareness of the pervasiveness of sexual harassment. The #MeToo and We Said Enough movements are only a couple of examples of how society is taking a stand to deter sexual harassment in the workplace. Now, more than ever, there is mounting pressure to put a halt to the somewhat normalized behaviors of sexual harassment occurring in the workplace that have hindered the success of many women’s careers for years.

SB 224 represents California’s goal to end sexual harassment in the workplace.  SB 224 acts to emphasize that those in powerful positions are liable for their actions by adding investors, producers, directors, lobbyists, and elected officials into legislation as examples of professional relationships where sexual harassment should not occur. This recognition of a broader scope of potentially liable professionals extends to include professional relationships that do not yet exist, but are offered. Additionally, SB 224 removes the requirement that the victim must prove the relationship was not able to be easily terminated before the harasser can be held liable for his or her actions. Lastly, SB 224 revises two Governmental Codes allowing the Department of Fair Employment and Housing (DFEH) to investigate cases of sexual harassment.

Through these changes, there is indication of a greater awareness for sexual harassment and a clear declaration that victims of these situations are supported by the law.  It promotes the eradication of professional behaviors of sexual harassment dictated by money, status, and power that have manipulated the vulnerable as they fear for their jobs. It removes blame from the victim by acknowledging that it is not up to the victim to terminate the relationship, but that the sexually harassing behavior should not have occurred in the first place. SB 224 makes it clear that victims are not alone as the DFEH plays a role, alongside the individual, in seeking justice.  The enactment of SB 224 unambiguously promulgates that those within professional relationships are entitled to respect, while reinforcing that those who violate this right should be held liable.

With its progressive ideals and underlying aim of achieving equality, SB 224 has faced no opposition. It passed in both the Senate and the Assembly and on September 30th, SB 224 was approved by Governor Brown. SB 224 is one step towards achieving the bigger picture of ending sexual harassment across multiple industries.

To learn more about SB 224, listen to my interview on “In Session,” a podcast from the University of the Pacific Law Review.

Trisha Mannie is a staff writer for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.

Here’s what the people at the Capital Center for Law & Policy have been reading and thinking about this week.

 

 

 

Molly Alcorn

New York Times

Asian-American Students Suing Harvard Over Affirmative Action Win Justice Dept. Support by Katie Benner

Students are suing Harvard over discrimination. This is not a new story- Universities across the country have been sued for racial discrimination against minorities. However, this story caught my interest due to the very stern statement of interest from the Justice Department. In this letter, the Justice Department states that Harvard failed to “adequately explain how race factors into its admissions decisions.” Of course, to keep things interesting, Harvard fired back by stating it was “deeply disappointed” but not surprised “given the highly irregular investigation the D.O.J. has engaged in thus far.”

 

 

 

Jon Wainwright

Santa Rosa Press Democrat

I’m trying out something new for CAP·impact. If you like – or don’t like – this kind of post let me know in the comments, or on Twitter or Facebook.

We’re going to let you all know what news has been capturing our attention over the past week. This week, we’ll start with the news I’ve been chewing on for the past week, and in the coming weeks, I’ll add some other familiar CAP·impact contributors. The news stories may or may not be political in nature. With no further ado, here are my top stories from the past week.

Former lawmaker under sexual misconduct investigation sues accuser for defamation

Earlier this week, Melanie Mason of the Los Angeles Times reported that former Assemblymember Matt Dababneh – who resigned eight months ago after allegations of serious sexual misconduct – filed a defamation lawsuit against his accuser, Pamela Lopez. Mason’s report came one day after Scott Lay discussed some positive things Dababneh could do with leftover campaign money that was transferred from Dababneh’s Assembly account to an account for a run at Lt. Governor in 2022 in his daily newsletter, The Nooner (start about halfway down the page, after the wildfire coverage for his thoughts on Dababneh). Lay discussed the defamation suit that Dababneh filed in Wednesday’s edition of The Nooner.

I remember a certain somebody else threatening to sue women who accused him of sexual assault, but never making good on that threat. Personally, I don’t like the look or smell of all of this lawsuit one bit, and I completely agree with Scott Lay’s assessment that we are “going to be deep in the gutter here.”

Capitol Weekly’s 10th Top 100 List features three McGeorge alumni

Earlier this week, Capitol Weekly announced their annual Top 100 list. It’s their “annual look at people who aren’t elected to office but who wield decisive influence on California politics or policy – or both.” This year was the 10th anniversary of the Top 100 and we were happy to be at the party announcing the honorees.

We were also very happy to see three McGeorge alumni make the list this year. Coming in at number 8 this year was Alan Zaremberg, President and CEO of the California Chamber of Commerce. At 38th is Rex Frazier, President of PIFC – short for Personal Insurance Federation of California. And coming in at 57th is Mike Belote, who is President of the contract lobbying firm California Advocates and a noted philanthropist.

Congratulations to the McGeorge alumni on the list, as well as all the honorees on this year’s Top 100 list!

Early returns are in from yesterday’s primary election here in California. Below is a recap of some key statewide races and some of the key Legislative and Congressional races with my thoughts on what last night’s results mean for the election in November. Unless otherwise noted, all the numbers referenced are courtesy of the hard work of the team at the Los Angeles Times (as of 10:00am) which has a running tracker of election results in California.

Governor

Lt. Governor Gavin Newsom (D) and businessman John Cox (R) advance to the General Election. While Cox has the support of President Trump and can self-fund his campaign. Newsom, who has been running for the job since 2015, has a sizeable war chest and California’s demographics on his side.  Democrats outnumber Republicans in California by nearly 2 to 1 (closer to 1.77 to 1), and as of May 21, there are more No Party Preference voters in California than Republicans. Newsom is currently ahead of Cox by a little under 300,000 votes, despite sharing the ballot with three other major Democratic candidates. Despite what President Trump thinks, I’d expect Newsom to strike Lieutenant from his job title and become California’s next Governor in November.

U.S. Senate

2018’s U.S. Senate race will be a repeat of 2016 as two Democrats will face off in November. Incumbent U.S. Senator Dianne Feinstein has a sizeable advantage in terms of campaign cash and name ID over former State Senate Pro Tem Kevin De Leon, as evidenced by Senator Feinstein garnering 3.89 times as many votes as De Leon. This looks to be a replay of the Hillary/Bernie fight in 2016. I’d expect Senator Feinstein to keep her job.

Insurance Commissioner

Steve Poizner looks to be the first major No Party Preference candidate to make it to the General Election under California’s Top Two rules. Granted Poizner has previously held the Insurance Commissioner post and was formerly a Republican. Should Poizner be successful in his bid for Insurance Commissioner, he may be paving the way forward for more moderate Republicans looking to make an impact at the statewide level. He’ll face off against Democratic State Senator Ricardo Lara in November. Less than 25,000 votes currently separate the two, but Lara did have competition from fellow Democrat Asif Mahmood. This will be an interesting race to watch come November.

Gas Tax Proxy Fight

State Senator Josh Newman faced a recall election for voting in favor of the gas tax increase last year, and it appears that his yes vote will cost him his job. Voters favored the recall to the tune of 59% and will send former Assembly Member (and opponent of Josh Newman in the 2016 State Senate race) Ling Ling Chang to the State Senate to replace him.

The recall was viewed by many as a proxy fight for the upcoming repeal of the gas tax that will be on the ballot in November. Results here indicate that the new taxes and fees that are guaranteed to go to fixing California’s roads and bridges are in jeopardy with momentum currently favoring the repeal effort.

#MeToo at the Ballot Box

SD 32 Special Election – In the Special Election to fill out the rest of former State Senator Tony Mendoza’s term (he resigned earlier this year just before his colleagues were going to vote to expel him) came in third. In the primary election to determine who will take the seat for the new term, Mendoza is in fourth and more than 6,400 votes behind second-place finisher Bob Archuleta.

Special Elections in AD 39 and AD 45 – Democrat Luz Rivas came out ahead in the special election to replace Raul Bocanegra, who resigned last year. Rivas also came in first in the primary election for the next term.  Similarly, Jesse Gabriel (D) came in first in the special election and primary election to take over for Matt Dababneh, who also resigned.

AD 58 – Asm. Cristina Garcia (D) came in first in her primary, with Republican Mike Simpfenderfer close behind her in second. Garcia just returned to the job after taking an unpaid leave of absence from her position while allegations of sexual harassment against her were investigated. The investigation determined those allegations to be unfounded, although that result is being appealed.

The Fight to Flip the House

CD 10 – Democrats have been eyeing Rep. Jeff Denham’s seat as one to flip for as long as he’s held it, and an overabundance of Democratic candidates in the district could lead to them being shut out of the general election. Democrat Josh Harder currently sits in second, but leads Republican Ted Howze by 850 votes. The combined vote total for Democratic candidates was 31,308 – 6,600 more than Denham received. Had Democrats coalesced around just Harder instead of fielding six candidates, Denham would be biting his nails instead of Harder.

CD 22 and 25 – Incumbent Reps. Devin Nunes (R – CA 22) Steve Knight (R – CA 25) look to be safe. Both pulled in over 50% of the votes last night. Although Katie Hill, currently in second against Rep. Steve Knight, can coalesce the party support and get a boost from voters looking to put more women into office, she could give the incumbent a run for his money.

CD 39, 45, 48, 49, and 50 – These races in Orange and San Diego counties were where Democrats faced the serious possibility of having no candidates in the General Election, despite these districts going for Hillary Clinton over Donald Trump in 2016. That’s because a glut of Democratic candidates nearly created a circular firing squad situation. Instead, it appears Democrats will have candidates on the ballot in November in each of these races. CD 39 and 49 are open seats and will be very competitive. The races in CD 48 and 50 feature embattled incumbents and should also be competitive. Of these five races, Rep. Mimi Walters (R) in CS 45 seems the safest, but all of these will be closely contested races and could be key in determining control of the U.S. House of Representatives.

 

 

 

 

The big news from late last week, and last weekend, was State Senator Tony Mendoza’s (D- Artesia) resignation from the California Legislature moments before the State Senate was going to vote on whether or not to expel him. His fiery resignation letter hinted that he was not ruling out running for re-election to the position he was resigning from. Over the weekend at the California Democratic Party’s convention, Mendoza made it clear that he is running for re-election.

There is nothing in the Joint Rules of the Senate and the Assembly, Senate Rules, or the California Constitution that prevents Mendoza from doing so after resigning. Actually, had Senator Mendoza been expelled, there is still nothing that prevents him from running for re-election. And should he win re-election, there is nothing in the California Constitution, Senate Rules, or Joint Rules that allows the California Senate to not seat him. Considering Mendoza’s current lawsuit against the Senate, it would not be surprising if he were to sue again should the Senate take actions to remove him from that body.

Something clearly needs to be done. As part of the California Legislature’s overall effort to clean house and make the building a safer work environment for staffers there should be something in place – rule, law, or otherwise – that prevents those who resign, or at the very least are expelled, due to sexual harassment from returning to the Legislature. This current gap in rules and law that allows lawmakers who have resigned or been expelled over sexual harassment to return to office is a glaring hole in the protections for staffers.

The bill introduction deadline for 2018 was 1½ weeks ago, but there are a few options legislative options the Legislature could pursue – gutting and amending a bill, or introducing a committee bill among –  for there to be a legislative fix this year. Even then, the new legislation would need to have an urgency clause added to it – making the bill effective immediately upon the Governor’s signature, but requiring a 2/3 vote in each house to pass – for it to prevent Mendoza from taking a seat in the State Senate. Without the urgency clause, the new law would go into effect in January of 2019; after Mendoza would have taken his seat in the Senate should he win re-election. But in the likely case that the sexual harassment allegations against Mendoza become a campaign issue, and he still gets re-elected, the law could be challenged in court on the basis that voters knew about the allegations and his resignation, and elected him anyways.

If the California Legislature truly wants to address this issue, it could put a constitutional amendment on the ballot and have the voters decide on whether or not a member of the Legislature who resigned or was expelled from their position can be allowed to be re-elected to a position in the Legislature. Constitutional amendments, unlike bills, are not beholden to legislative deadlines and can be introduced in the Legislature at any time. That constitutional amendment could be on the ballot come November. And a statewide vote on the amendment, were it to pass, would counter the voter argument Mendoza could use against a change in statute that I mentioned earlier.

However, as was shown recently with Prop 8, even constitutional amendments that are passed by California’s voters can be challenged and taken to the California Supreme Court. But for this to go that far, it will come down to appetite of Mendoza, and/or some other Senators to be named, to continue the fight to that point.