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New California law targets sexual harassment of janitors

In this blog, we will often discuss employment law, including new developments in California as well as federal legislation and case law. We will provide information to help employers of all sizes and types understand the kinds of legal responsibilities they have vis-à-vis their employees.

Today we talk about new California legislation targeted to protect janitorial employees from illegal sexual harassment by increasing state regulation of the industry. We also look briefly at pre-existing sexual harassment laws.

It is important that any California business involved in janitorial work -- as an employer, independent contractor, subcontractor or through a franchise arrangement -- consult a lawyer to understand new legal responsibilities that the Property Service Workers Protection Act imposes.

The climate for California janitorial workers

The University of California, Berkeley's Labor Occupational Health Program or LOHP released a comprehensive report on the subject in May 2016. While this report slightly predates the new law, it explains in detail the phenomenon of sexual harassment in this industry, in particular among female immigrant or Latina janitors who work alone at night in isolated workplaces.

The new law

The new law attempts to keep janitorial employers from flying under the radar of authorities by increasing state regulatory requirements. For example:

  • Janitorial employers must keep records for three years of workers, their time worked and wages, including the ages of employees under 18.
  • Starting July 1, 2018, janitorial employers must register annually with the state. The registration requires disclosure of detailed information about the employer and key individuals as well as about certain violations of wage and tax laws and more. Failure to register or renew means the employer "shall not conduct any business ..." or it will be subject to fines.
  • Registered janitorial employers will be in a public database. Anyone contracting with an unregistered janitorial employer may be fined.
  • Starting in 2019, a state-created sexual harassment training program will be required every other year of all janitorial employers and employees.

Broader sexual harassment laws

The Berkeley report also summarizes the broader state and federal laws that prohibit sexual harassment to which janitorial employers are also subject.

For example, some of the current federal and state requirements are:

  • Sexual harassment in employment is illegal under federal law and claims can be filed with the U.S. Equal Employment Opportunity Commission or EEOC, but in most circumstances only against employers with at least 15 employees. In most situations, an EEOC complaint needs to be filed before a federal lawsuit is allowed.
  • Sexual harassment at work is also illegal under California law and claims may be filed with the Department of Fair Employment and Housing or DFEH. Usually, an employer with at least one employee is subject to this law. Normally, a DFEH charge must be filed to get the right to sue in court under state law.
  • EEOC and DFEH have a work-sharing agreement; a claimant can request after filing with one that the claim also be considered by the other agency.
  • California law requires each employer to create and enforce a sexual harassment policy, a complaint process and investigatory procedures. After a complaint, the employer must make a finding whether harassment happened and take corrective action.
  • California law requires employers with at least 50 employees provide sexual harassment training every two years to supervisory staff.
  • Broadly, two kinds of sexual harassment at work exist: an unwanted request for sexual favor as a condition of employment or of an employment benefit; or a hostile work environment created by persistent conduct of a sexual nature.
  • Sexual harassment can be by supervisors, coworkers or others in the workplace, of the same or opposite gender as the victim.

Next steps

The Berkeley report says that the strongest way to prevent sexual harassment is to establish a sexual harassment policy and enforce it. An employment lawyer can work with a janitorial employer (or any employer) to draft, disseminate and enforce such a policy in accord with applicable state and federal laws.

Legal counsel can also assist employers in responding to complaints, conducting investigations and responding to sexual harassment claims and lawsuits.

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