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#MeToo on the Move: Sexual Harassment Laws Impacting Employers.

Ever since the #MeToo and #TimesUp movements shined a national media spotlight on sexual harassment in the workplace, state legislatures have passed bills regarding various aspects of sexual harassment.

The latest guidance may require employers to take additional action in developing policies and procedures related to sexual harassment, and training employees to respond to workplace issues and promote safe work environments. It is imperative that EA professionals are aware of these developments.

Legal Updates

In the past 30 months, elected officials in numerous states passed more than 260 laws directly addressing topics supported by anti-sexual harassment initiatives. Most of the proposals are related to the actions of legislators and government employees, but some are directed toward other employers--those in the private sector specifically. In summary:

* Twelve states (Arizona, California, Delaware, Illinois, Louisiana, Maryland, Nebraska, New York, Oregon, Tennessee, Vermont, and Washington) enacted laws that affect both private and public employers.

* Eight states (California, Delaware, Florida, Louisiana, Maine, Maryland, New York, and Oregon) passed legislation that requires regular sexual harassment training for employees at various levels.

* Four (Maryland, New York, Vermont, and Washington) limited employers' ability to enforce mandatory arbitration for workplace sexual harassment claims in employee contracts. The impact of these legislative moves may be blunted by the Supreme Court of the U.S.'s decision in Epic Systems Corporation v. Lewis.

At the state and local levels, these laws have more variations, and the combination or types of laws indicate the direction or impact of certain industries, locales, and other factors. Hall Render attorneys surveyed a few states' legislative developments as examples.

California

S.B. 1300 is a comprehensive bill that creates and amends state laws on sexual harassment in the workplace. It went into effect on January 1, 2019. The bill makes it unlawful for employers to require employees to sign non-disparagement or other agreements prohibiting employees from disclosing unlawful acts in the workplace, including sexual harassment, as conditions of employment or continued employment.

The law also expands sexual harassment liability for employers where the harassment is committed by a non-employee, such as a customer or vendor, and limits employers' rights to fees as a prevailing defendant. The law permits employers to provide bystander training that encourages and enables an active response to assist victims rather than remaining silent. Finally, the law provides guidance for courts in applying the new harassment laws.

* As but one example, by 2020 employers with five or more employees must provide sexual harassment prevention training to both supervisory and non-supervisory employees at least once every two years.

New York

* As of January 1, 2019, all state contractors must submit a declaration that they have a sexual harassment prevention policy that adheres to at least a minimum set of criteria and that they provide annual training to all employees. By October 9, 2019, all public and private employers in the state are required to adopt a sexual harassment policy meeting those same minimum criteria and provide copies and yearly training to employees.

* Beginning April 1, 2019, the Stop Sexual Harassment in NYC Act signed by the mayor requires employers with 15 or more employees to conduct annual anti-sexual harassment training for all employees. The local law outlines required topics to be discussed during the training, including not only employer, state, and federal complaint processes but also bystander intervention, which may be required for certain managerial or supervisory employees.

* Since July 11, 2018, most new employment contracts cannot require employees to submit to mandatory arbitration for sexual harassment allegations and claims.

Vermont

As of July 1, 2018, HB 707 prohibited all employment agreements from containing provisions that restrict or waive an employee's rights or remedies with respect to a claim of sexual harassment. The law also requires that settlement agreements resolving sexual harassment claims include a provision that the employee may report sexual harassment or cooperate with any investigation about the issue. Such settlement agreements must not restrict the employee's ability to work for the employer in the future.

The law further authorizes workplace audits by the Attorney General for compliance with the sexual harassment laws, such as the requirement that employers provide copies of their sexual harassment policies to new hires and other employees. Finally, because "employees" is defined so broadly in the statute, the law can be read to protect not only employees but also interns, volunteers, and independent contractors.

Court Developments

Certain decisions may influence how employers choose to handle actual or potential sexual harassment claims. For instance, in Minarsky v. Susquehanna County, the Third Circuit Court of Appeals decided on July 3, 2018 that Sheri Minarsky's four-year delay in notifying her employer, Susquehanna County, of sexual advances made by her supervisor was not per se unreasonable and vacated an order granting the defendant-employer summary judgment on the issue.

In so holding, the court acknowledged several legitimate reasons for not reporting her supervisor's behavior earlier, including her fear of job loss due to financial need in light of her daughter's cancer treatments and the employer's unfavorable handling of a previous employee's complaint of misconduct.

The U.S. Supreme Court in Epic Systems Corporation v. Lewis, decided May 21, 2018, questioned whether employment contracts requiring individualized arbitration for resolving disputes are enforceable if they are intended to prevent multiple employees from suing an employer jointly. The Supreme Court held that arbitration agreements providing for one-on-one or individualized proceedings must be enforced, and neither the Federal Arbitration Act's saving clause nor the National Labor Relations Act suggests otherwise.

Practical Takeaways

In just two years, states have adopted a number of laws and saw a number of court cases related to sexual harassment that impact both public and private sector employment. If they have not done so already, employers should check for updates to laws in their cities and states and ensure that their policies and procedures align with the current laws and court decisions.

With the heightened awareness of sexual harassment brought about by #MeToo and #TimesUp, employers should expect additional legislation and court decisions to impact their workplaces. It behooves EA professionals to keep up with court and legislative actions.

Editor's note: The recommendations provided in this article are for educational purposes only and are not to be construed as actual legal advice. Always consult with a local attorney.

By Robin Sheridan, JD, MILR

Robin M. Sheridan is an attorney with Hall, Render, Killian, Heath & Lyman, PC, the largest health care-focused law firm in the country. Robin may be reached at (414) 721-0469 or rsheridan@hallrender.com.
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Title Annotation:legal lines
Author:Sheridan, Robin
Publication:The Journal of Employee Assistance
Date:Apr 1, 2019
Words:1084
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