Question of the Month

June 2019

Question
Have any new sexual harassment laws been enacted in your state/province since the #metoo movement?
Answer from Alabama

No in Alabama.

For more information please contact Michael Thompson at mthompson@lehrmiddlebrooks.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from California

At the end of the 2018 legislative session, outgoing California Governor Jerry Brown signed a number of laws addressing workplace harassment in the #metoo era.  

First, California employers with 5 or more employees must provide sexual harassment training of at least two hours to supervisory employees and of at least one hour to all non-supervisory employees by January 1, 2020.  Such employers must continue to provide sexual harassment training once every two years.  Previously, only employers with 50 or more employees were required to provide sexual harassment training, and the training was only required for supervisory employees.   

Second, California law now prohibits any provision within a settlement agreement that prevents disclosure of “factual information” related to certain claims of sexual assault, sexual harassment under Civil Code section 51.9 (business relationship) and workplace harassment and discrimination based on sex, and other related claims filed in a civil or administrative action. However, at the request of the plaintiff/claimant, a settlement agreement may include a provision shielding the identity of the plaintiff/claimant and all facts that could lead to the discovery of the plaintiff/claimant’s identity. In addition, a settlement agreement may preclude disclosure of the amount paid in settlement of a claim.

Third, California’s Fair Employment and Housing Act (“FEHA”), which prohibits workplace discrimination and harassment, was amended to prohibit employers from requiring an employee to sign a non-disparagement agreement or other agreement preventing the employee from disclosing information pertaining to sexual harassment or “any other unlawful or potentially unlawful conduct.” The law was also amended to makes it unlawful for an employer to require an employee to release a claim under FEHA as a condition of employment or continued employment or in exchange for a raise or bonus.  These new restrictions do not apply to negotiated settlement agreements resolving any underlying FEHA claim that has been filed by an employee in court, before an administrative agency, or through an alternative dispute resolution forum or an employer’s internal complaint process.

Fourth, the California legislature declared its intent that, under FEHA, a single alleged incident of harassing conduct should be sufficient to deny summary judgment and should result in the case proceeding to trial if the harassing conduct has unreasonably interfered with the employee’s work performance or created an intimidating, hostile or offensive work environment.

Additionally, California requires any publicly traded company that has its principal executive office in California to have at least one female director by the end of 2019, even if it has to expand its board to make room.  By the end of 2021, these companies must have at least two women on five-member boards and at least three women on boards with six or more directors.

For more information please contact David Wimmer at dwimmer@swerdlowlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Florida

In Florida there have been legislative efforts, but nothing has been passed

For more information please contact Wayne Helsby at whelsby@anblaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Georgia

No in Georgia.

For more information please contact Doug Duerr at duerr@elarbeethompson.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Hawaii

None have been enacted, but there is a bill currently pending in the state legislature that would prohibit employers from requiring employees to enter into a non-disclosure agreement as a condition of employment that would prevent an employee from discussing sexual harassment and/or sexual assault in the workplace.

For more information please contact Megumi Sakae at MSakae@marrjones.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Maryland

Last year, the General Assembly passed the “Disclosing Sexual Harassment in the Workplace Act of 2018.” The law prohibits an employer from requiring a waiver of future sexual harassment or retaliation claims and prohibits an employer from taking adverse action against an employee for refusing to enter into an agreement with such a waiver. The law does not prohibit agreements permitted under federal law, which would presumably include arbitration agreements under the Federal Arbitration Act. The prohibitions apply to agreements executed, extended or renewed after October 1, 2018.

The law also contains a reporting provision, by which employers with 50 or more employees must submit an electronic survey on or before July 1, 2020 and on or before July 1, 2022 that contains:
•        the number of sexual harassment settlements made (it is unclear over what period and whether only Maryland settlements are covered),
•        the number of settlements paid to the same employee over the past 10 years, and
•        the number of sexual harassment settlements containing a confidentiality provision (again, it is unclear over what period and whether only Maryland agreements are covered)
•        Whether personnel action was taken against an employee who was the “subject” of a settlement (it is unclear if this means the harasser or the victim or both)

The Maryland Commission on Civil Rights will post the aggregate number of responses for each item and make specific employer responses available for public review. The Commission will prepare a summary of a random selection of each set of surveys six months afterwards for submission to the Governor, the House Economic Matters Committee and the Senate Finance Committee. The reporting provision has a sunset date of June 30, 2023.

For more information please contact Fiona Ong at fwo@shawe.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Massachusetts

No new laws have been enacted, but there has been an increase in sexual harassment litigation,  and the state agency that enforces the state’s anti-discrimination laws, Massachusetts Commission Against Discrimination is taking a very close look at claims of sexual harassment.

For more information please contact Marylou Fabbo at mfabbo@skoler-abbott.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Minnesota

No, but there is a proposal in the State Legislature to remove the long-standing current “severe or pervasive” legal standard for sexual harassment claims.

House Democrats have drafted a bill that would remove the long-standing current “severe or pervasive” legal standard for sexual harassment claims under the Minnesota Human Rights Act. HF10 (Moller - 42A, DFL).

For more information please contact Tom Revnew at TRevnew@seatonlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Nevada

The Nevada Gaming Control Board has become active in this area, proposing to amend gaming regulations to require licensees’ adoption of procedures, policies, and training regarding sexual harassment in the workplace.

Additionally, upon taking office in January 2019, Governor Sisolak created a Task Force on Sexual Harassment and Discrimination Law and Policy and issued an Executive Order requiring certain agencies to collect the harassment and discrimination policies and procedures of marijuana and gaming license, permit, or certificate holders and all current State vendors.  As of January 2019, however, no new law has yet been enacted to address this movement.

For more information please contact Scott Abbott at sabbott@kzalaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Ohio

No in Ohio.

For more information please contact Lynn Schonberg at lynns@rbslaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Pennsylvania

As of this date, Pennsylvania has not enacted any new sexual harassment laws since the start of the #metoo movement.  A bill has been introduced in the General Assembly that would amend the fair practices notice mandated by the Pennsylvania Human Relations Act to include additional information about sexual harassment, including a description of behavior that could constitute sexual harassment, but its prospects for passage are unclear.

For more information please contact John Ellis at jellis@ufberglaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Texas

No in Texas.

For more information please contact John Freeman at jfreeman@keyharrington.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Virginia

In the most recent session of the General Assembly, a law was passed limiting the use of non-disclosure or confidentiality agreements by employers that would have the effect of preventing an employee from disclosing a sexual assault.  The law, passed as House Bill 1820, has not yet been codified into the Virginia Code.  It will become law July 1, 2019.

For more information please contact Susan Carnell at scarnell@lorengercarnell.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Washington

Yes, in 2018 the Washington legislature passed the following laws:   

RCW 49.44.210 prohibits agreements that bar disclosure of sexual harassment or sexual assault in the workplace, at work events, or involving the employer or another employee outside of work.  Such agreements are only prohibited as conditions of employment (e.g., in an employee agreement or contract), meaning separation and settlement agreements can still be confidential.  The law exempts managers, supervisors, and human resources personnel who are expected to keep complaints confidential as part of their job duties.  Employees who are interviewed as part of an investigation and are asked to keep the matter confidential until its conclusion are exempted as well.   In addition, although not specific to sexual harassment, RCW 49.44.85 bars employers from requiring employees to waive the right to “publicly pursue a cause of action” or “publicly file a complaint” regarding discrimination with the appropriate agency.  The law also invalidates any provision requiring such claims be resolved in a confidential resolution process.  It is unclear how this law intersects with the Federal Arbitration Act, which has been found to preempt other state prohibitions on dispute resolution.

For more information please contact Ken Diamond at ken@winterbauerdiamond.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Wisconsin

No in Wisconsin.

For more information please contact Laurie Petersen at LPetersen@lindner-marsack.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Tweets Follow

Aug 16

@USDOL Gives Working Parents FMLA Pass to Attend Children's Special Education Meetings https://t.co/8cpdqBzPWR

Aug 16

NLRB Expands Scope of Mandatory Arbitration Agreements https://t.co/77x0vtj0f7

Aug 15

The First Rollout of Proposed Amendments to the NLRB's Election Rules https://t.co/Jd0nHg5vhB