Updated policies, new trainings and employee accountability hit the workplace.
There have been a variety of responses to the #MeToo movement since it began a little over a year ago. Employees have responded by filing more internal and external complaints. In fact, in early October the Equal Employment Opportunity Commission (EEOC) released its fiscal year 2018 statistics regarding workplace harassment. Among other things, the data showed that charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from fiscal year 2017. In addition, the EEOC reported that it recovered nearly $70 million for victims of sexual harassment in fiscal year 2018, an increase of $22.5 million from fiscal year 2017. You can find more information on the EEOC’s report here.
Employers have responded to the #MeToo movement by updating policies, conducting more trainings and holding employees accountable. While the United States Congress has not yet responded with specific legislation, many states have taken action to address sexual harassment and sexual misconduct in the workplace.
As a result, employers operating in multiple states must be aware of the various approaches taken by states and ensure compliance obligations are met. Most employers have already taken action to address differing state law requirements such as how and when to pay employees, availability and use of paid leave, and the legality and enforcement of restrictive covenants. In 2019, employers will need to add sexual harassment compliance to the state-by-state compliance list. Here is a high-level summary of some of the more recent state laws addressing sexual harassment.
On September 30, 2018, a new law was enacted that prohibits the inclusion of language in settlement agreements that prevent the disclosure of factual information related to:
- Acts of sexual assault;
- Acts of sexual harassment as defined under Section 51.9 of the California Civil Code;
- Acts of workplace harassment and discrimination based on sex;
- Failure to prevent acts of workplace sexual harassment or sex discrimination; and
- Retaliation against a person for reporting harassment or discrimination based on sex.
The new law applies to any settlement agreement entered into on or after January 1, 2019 settling a claim filed in a civil or administrative action. If a settlement agreement contains a provision prohibiting disclosure of the information listed above, the provision will be considered void as a matter of law and against public policy.
As a result of this new law, employers with operations in California should consider the impact on potential settlement of sex-based harassment and discrimination claims. The new prohibitions on certain confidentiality provisions of a settlement may create a greater risk for damage to the employer’s reputation even after settling a sex-based claim with an employee or former employee.
Since 2005, California employers with at least 50 employees have been required to provide two hours of sexual harassment prevention training to all supervisory employees once every two years. On September 30, 2018, legislation was approved that will require California employers with at least five employees to provide sexual harassment training and education to all employees (both supervisory and non-supervisory). This new law requires at least two hours of sexual harassment prevention training and education for all supervisory employees and at least one hour of such training for all non-supervisory employees by January 1, 2020. Thereafter, the training and education must be provided once every two years.
As a reminder, the sexual harassment training required since 2005 includes mandatory topics such as:
- The definition of sexual harassment under the California Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964;
- The statutes and case-law prohibiting and preventing sexual harassment;
- The types of conduct that can be sexual harassment;
- The remedies available for victims of sexual harassment;
- Supervisors’ obligation to report harassment;
- Practical examples of harassment;
- Resources for victims of sexual harassment, including to whom they should report it.
This training must be provided in a classroom setting, through interactive e-learning, or through a live webinar. All training must include questions that assess learning, skill-building activities to assess understanding and application of content, and hypothetical scenarios about harassment with discussion questions. Additional information on the requirements related to California’s mandatory sexual harassment training can be found here.
On August 29, 2018, Delaware passed a law that includes mandatory distribution to employees of a state-created information sheet on sexual harassment. Employers with four or more employees in the state of Delaware will be required to distribute the information sheet to new employees at the commencement of employment and all existing employees by July 1, 2019, at the very latest. The sexual harassment information sheet can be found here.
In addition, much like California’s training requirements, Delaware requires employers with at least 50 employees in the state of Delaware to provide interactive sexual harassment training and education. However, unlike California’s training requirements, the new Delaware law requires that both nonsupervisory and supervisory employees receive the training.
Employers covered by the new law must provide interactive sexual harassment training to employees that includes the following components:
- Addresses the illegality of sexual harassment;
- Defines sexual harassment with the use of examples;
- Describes the legal remedies and complaint process available to employees;
- Provides directions to employees on how to contact the Delaware Department of Labor;
- Instructs employees that retaliation is prohibited.
The training must be conducted for new employees within one year of the commencement of their employment. Current employees must receive the mandatory training by January 1, 2020.
New supervisors must receive additional interactive training within one year of the commencement of their employment in a supervisory role and existing supervisors must receive training by January 1, 2020. The additional training for supervisors must also include: (1) specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment; and (2) the legal prohibition against retaliation.
Employers who provide – or have already provided – training that meets the requirements of the law prior to January 1, 2019, are not required to conduct additional training until January 1, 2020. After January 1, 2020, both the employee and supervisor training programs must be repeated every two years.
Many states have taken action to address sexual harassment and sexual misconduct in the workplace.
On October 1, 2018, Maryland’s new law known as the “Disclosing Sexual Harassment in the Workplace Act of 2018” went into effect. The new law contains two key requirements that Maryland employers should immediately prepare for.
First, the new law prohibits Maryland employers from including any provision in a non-disclosure agreement, confidentiality agreement, employment agreement or policy that waives an employee’s substantive or procedural right or remedy to a future claim of sexual harassment or retaliation for reporting sexual harassment. In addition, the new law prohibits employers from taking any adverse action against an employee because the employee refuses to enter into an agreement containing this type of a waiver. These restrictions apply to employers of any size within the state of Maryland.
The second portion of the new law requires Maryland employers with 50 or more employees (regardless of whether the employees are inside or outside the state) to submit answers to biannual surveys conducted by the Maryland Commission on Civil Rights (“MCCR”). These surveys will request information related to sexual harassment that includes: (1) the number of settlements made by the employer in response to or after employee allegations of sexual harassment; (2) the number of times the employer has paid a settlement to resolve a sexual harassment allegation against the same employee over the prior 10 years; and (3) the number of settlements made after an employee’s allegation of sexual harassment where the parties agreed to keep the terms of the settlement confidential. The survey will also include a request for information about whether an employer took action against employees who were the subject of a sexual harassment settlement. The initial survey deadline will be July 1, 2020, with the second survey being due on or before July 1, 2022.
To comply with the new Maryland law, employers should review employment-related agreements to ensure these documents do not contain prohibited waiver language regarding claims of sexual harassment or retaliation and revise current policies on sexual harassment as necessary. Those Maryland employers with 50 or more employees should also begin preparing for the surveys by reviewing and gathering applicable information related to sexual harassment claims and settlements and ensure the proper preservation of future settlement records.
The State of New York passed legislation this year that addressed several aspects of sexual harassment in the workplace. Among other things, the legislation:
- Prohibits courts from approving confidential settlement agreements related to claims of sexual harassment, unless certain conditions are satisfied;
- Extends liability under the New York State Humans Rights Law to employers who permit sexual harassment of non-employees;
- Requires every employer in New York State to distribute a written sexual harassment policy and perform annual sexual harassment training.
To assist employers with their policy and training obligations under the new law, the New York State Department of Labor and the Division of Human Rights created a model sexual harassment policy and sexual harassment prevention training materials that employers may use. Employers are not required to use the model policy and training materials, but they must be sure that trainings and policies are in compliance with the various materials provided by the State of New York. The model materials, titled “Combating Sexual Harassment in the Workplace,” are on the New York State website. There you can find a model sexual harassment policy, model training materials, a model complaint form and frequently asked questions.[MOU1]
It is important to note that New York employers were provided an extension in order to implement the first mandatory sexual harassment prevention training. The prior deadline of January 1, 2019, was extended to October 9, 2019, giving New York employers 10 more months to prepare and conduct the required trainings.
Employers that have operations and employees in several states should add sexual harassment compliance to their state-by-state compliance list. As illustrated above, individual states have taken and continue to take the lead in creating laws to address sexual harassment in the workplace. These requirements vary from state to state and range from mandatory training to providing written notice to employees about sexual harassment.
Now is a key time for employers to create or update their sexual harassment training programs to meet new state law requirements and to start planning, preparing and scheduling trainings that comply with the various state law requirements and compliance dates. This is also a great time to review and update workplace sexual harassment policies to ensure consistency and compliance with the various new state law requirements.
Mark Hipple is an associate in the labor and employment practice group at McNees. Reach him at firstname.lastname@example.org.
Published January 3, 2019.