Employers Face New Law for Harassment in the Workplace – Employment Law Weekly

Employers Face New Law for Harassment in the Workplace

The California Governor signed Senate Bill 428 on September 30, 2023. The new law expands the circumstances under which employers can seek civil restraining orders on behalf of their employees for harassment.

Under the new law, harassment is defined as “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress.”

To obtain a restraining order for harassment, a declaration must be filed that establishes:

– – that an employee has suffered harassment by the respondent;
– – that great or irreparable harm would result to an employee;
– – that the course of conduct at issue served no legitimate purpose; and
– – that the issuance of the order is not prohibited by speech or other activities protected by any other law as defined in the law.

The problem with the current law, from the point of view of the author and sponsor of the bill, is that the employer was powerless to obtain a restraining order for an employee until the situation reaches the point of including unlawful violence or a credible threat of violence. Even when a co-worker, a customer, or some other third party is harassing an employee in extreme ways therefore, the employer may try other measures to protect the employee, but a civil restraining order is not one of the employer’s available tools unless and until the harasser becomes or threatens to become violent.

An example of this problem was illustrated by our August 2022 report on the California Court of Appeal published case in Technology Credit Union v Rafat 82 Cal. App. 5th 314 (August 17, 2022). The Court of Appeal reversed a Santa Clara County Superior Court restraining order under existing law against Matthew Mehdi Rafat.

In doing so, the Opinion said “Rafat’s conduct on March 24 was indisputably rude, impatient, aggressive, and derogatory. Further, he had a history of using aggressive language, including making offensive remarks.” However it went on to say “However, while he appeared angry and frustrated during the March 24 incident and its aftermath, there was not sufficient evidence produced by TCU linking any of Rafat’s statements or conduct to any implied threat of violence.”

Perhaps the new law will assist employers who want a restraining order against behavior such as what occurred in the case of Mr. Rafat.

Newsom also signed Senate Bill (SB) 553, which will require employers to establish, implement, and maintain an effective workplace violence prevention plan (WVPP) effective January 1, 2025. The employer will also be required to record information in a violent incident log for every workplace violence incident, and to provide effective training to employees on the workplace violence prevention plan, along with other requirements specified in the new law.

And at the federal level, on September 29, 2023, the Equal Employment Opportunity Commission (EEOC) issued Proposed Enforcement Guidance on Harassment in the Workplace.

In Proposing this new Guidance, the EEOC said “harassment remains a serious workplace problem. Between the beginning of fiscal year (FY) 2018 and the end of FY 2022, thirty-five percent of the charges of employment discrimination received by the Equal Employment Opportunity Commission included an allegation of harassment based on race, sex, disability, or another protected characteristic. The actual cases behind these numbers reveal that many people still experience harassment that may be unlawful.”

The Proposed Enforcement Guidance on Harassment in the Workplace is part of the EEOC’s Fiscal Years 2024 – 2028 Strategic Enforcement Plan.

The purpose of the EEOC’s Strategic Enforcement Plan (SEP) is to focus and coordinate the agency’s work over a multiple fiscal year period to have a sustained impact in advancing equal employment opportunity. The agency’s first Strategic Enforcement Plan adopted for FY 2013-2016 established subject matter priorities and strategies to integrate the EEOC’s private, public, and federal sector activities. In adopting the FY 2017-2021 SEP, the Commission reaffirmed its subject matter priorities with some modifications and additions.

In its Fiscal Years 2024 – 2028 Strategic Enforcement Plan the EEOC says it “will focus on harassment, retaliation, job segregation, labor trafficking, discriminatory pay, disparate working conditions, and other policies and practices that impact particularly vulnerable workers and persons from underserved communities.”

It seem clear that once the Proposed Guidance on Harassment in the Workplace becomes final, and other measures and policies under Fiscal Years 2024 – 2028 Strategic Enforcement Plan are announced, SB 428 may assist employers in obtaining restraining orders against persons who are outside their facilities. Unfortunately SB 428 does not take effect until January 1, 2025.

Employers Face New Law for Harassment in the Workplace

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