State Legislatures Tackle Sexual Harassment in the Workplace

More than 100 bills or resolutions related to sexual harassment and workplace misconduct have been introduced during the 2018 state legislative session, according to the National Conference of State Legislatures. This legislative effort—fueled, in part, by the grassroots #MeToo movement that began in Fall 2017—continues the nationwide focus on workplace sexual harassment. This is yet another area in the increasing trend of state and local legislative activism with the potential to create a patchwork of laws and regulations that will change how employers address and resolve allegations of sexual harassment.

There are common themes to be gleaned from the proposed state legislation—including the limitations on the use of confidentiality agreements and mandatory arbitration agreements in resolving claims of workplace harassment. In New Jersey, Pennsylvania, and Washington state, lawmakers are seeking to limit an employer's ability to condition continued employment or settle a claim of workplace harassment on the employee's agreement to remain quiet about the details or existence of the claim. In South Carolina, lawmakers are proposing to eliminate an employer's ability to require mandatory arbitration for workplace sexual harassment claims.

In February 2018, California state legislators introduced nearly two dozen bills addressing issues similar to those addressed in other states' proposed legislation. These California bills add to the 2017 legislation, which expanded sexual harassment training requirements, by requiring employers to provide training to supervisors and managers on the prevention of sexual harassment, abusive conduct, and harassment based on gender identity, gender expression, and sexual orientation.

Most recently, on March 30, the New York Legislature passed anti-sexual harassment legislation—Senate Bill S7507C—which Governor Andrew Cuomo is expected to sign into law shortly. Key provisions include:

• Prohibiting non-disclosure (i.e. confidentiality) provisions in settlement agreements involving a claim of sexual harassment—whether or not formally filed in court or with an agency—unless the complainant requests that the settlement remain confidential.

• Prohibiting mandatory arbitration of sexual harassment claims, "except where inconsistent with federal law." This prohibition applies retroactively, invalidating existing agreements that require arbitration of sexual harassment claims. It is not clear whether the Federal Arbitration Act (FAA) preempts this provision, but a bill is pending in the U.S. Senate to amend the FAA to prevent mandatory arbitration of sexual harassment claims.

• Extending protection against sexual harassment to non-employees, such as independent contractors, consultants, and vendors, and establishing liability for "agents" or "supervisors" who knew or should have known that non-employees were subjected to sexual harassment.

• Directing the New York State Department of Labor (NYSDOL), in consultation with the Division of Human Rights, to draft model anti-sexual harassment policies and training programs. Employers must either adopt the model policy and training program set by the NYSDOL, or establish a policy and training program that equals or exceeds the agency's minimum standards.

• Mandating interactive, annual sexual harassment training, of no less than two hours in length.

• Requiring employers that submit competitive bids for any state contract provide certification that they have created and implemented a sexual harassment policy, and that they provide annual sexual harassment prevention training to all of their employees; effective January 1 of the year following signature of the bill.

The expanding world of state legislation suggests that employers should take a closer look at their current policies and practices when it comes to responding to, and resolving, allegations of sexual harassment. It will be important for employers to ensure that their handbooks, arbitration agreements, confidentiality agreements, and severance agreements comply with the various state laws.

Ballard Spahr's Labor and Employment Group routinely assists employers in developing anti-harassment policies and trainings, navigating the investigation and allegation resolution process, as well as defending sexual harassment claims under state and federal law. The firm’s cross-disciplinary and diverse Workplace Investigations Team has experience conducting investigations into allegations of sexual misconduct, and can help clients navigate the attendant issues involved in such investigations, including crafting media strategy and handling corporate governance issues.

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