Assembly Bill 3081, authored by Assembly Member Lorena Gonzalez Fletcher, is pending before Governor Jerry Brown after having passed both houses of the Legislature. AB 3081 would require a client employer to share with a labor contractor all civil legal responsibility and civil liability for harassment for all workers supplied by that labor contractor.

In addition, AB 3081 would establish a rebuttable presumption of unlawful retaliation based on the employee’s status as a victim of domestic violence, sexual assault, sexual harassment, or stalking if an employer takes specific actions within 30 days following the date that the victim provides notice to the employer or the employer has actual knowledge of the employee’s status.

Unfortunately, while well-intended, AB 3081 would expand joint liability to all employment related harassment claims, not just sexual harassment complaints. Making businesses jointly liable for all employment-related harassment complaints is a significant expansion of the law for which there is no basis when the contractor cannot force a labor contractor to comply with all relevant provisions of the Labor Code and the Fair Employment and Housing Act in the Government Code.

Current law and the common law approach to joint liability based upon whether the employer knew or should have known about the third party’s harassment activity and the employer’s failure to take corrective action is the appropriate approach. How is the employer expected to ensure that the third-party’s employees are not engaging in harassing conduct?

While California imposes statutory joint liability for failure to pay wages or provide workers’ compensation coverage for a third party’s employees, those two items can be objectively verified by the contracting employer by reviewing paperwork such as pay stubs and the carrier’s certification of coverage. There is not a similar objectively verifiable approach to ensuring that no harassing conduct has occurred by the third party’s employees.