Maryland recently enacted the Disclosing Sexual Harassment in the Workplace Act of 2018 (the “Act”) with an effective date of October 1, 2018. The Act places two types of obligations on Maryland employers. First, Maryland employers with at least 50 employees will be required to submit survey responses to the Maryland Commission on Civil Rights (“MCCR”) with the following data by July 1, 2020 and again by July 1, 2022: (1) the number of settlements made by or on behalf of the employer after an allegation of sexual harassment by an employee; (2) the number of times the employer has paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment (and whether the employer took personnel action against said employee); and (3) the number of settlements made after an allegation of sexual harassment that included a provision requiring both parties to keep the terms of the settlement confidential.

The Act directs the MCCR to publish aggregate employer survey data on its website and allow public inspection of certain data upon request. The MCCR will report employer responses to the Governor and select committees, but the Act is silent on how they will in turn use the information. This section of the Act requiring employers to report data will automatically expire on June 30, 2023.

Second, all Maryland employers, regardless of size, are prohibited from including in an employment agreement, contract, or policy, any provision that waives an employee’s substantive or procedural rights or remedies to a claim that accrues in the future for sexual harassment or retaliation for reporting sexual harassment. An employer may not take adverse action against employees for refusing to agree to a prohibited waiver, and employers will be liable to employees for reasonable attorney’s fees and costs if they enforce or attempt to enforce a prohibited waiver. The Act provides that this first obligation applies “except as prohibited by federal law,” and the effect, if any, of the new law on arbitration agreements will need to be determined.

To prepare for October 1, employers should review employment agreements and relevant policies to ensure they do not contain a waiver of substantive or procedural rights or remedies regarding future-accruing claims of sexual harassment or retaliation for reporting sexual harassment.  Additionally, Maryland employers covered under the Act’s reporting obligations will need to be prepared by 2020 to complete the mandatory survey.

As we previously reported, Congress and several states have responded to the #MeToo movement by introducing legislation that addresses sexual harassment in the workplace.

For more information or for any other employment matter impacting your business, please contact the authors of this article or the attorney you regularly work with at Hogan Lovells.

Over the past several weeks, New York has gotten serious in its attempt to end sexual harassment. Earlier this month, Mayor Bill de Blasio signed the “Stop Sexual Harassment in NYC Act” (“New York City Act” or “Act”) into law, bringing about sweeping changes that will affect all New York City employers.

  • Specifically and effective immediately, the New York City Human Rights Law (“NYCHRL”) will consider sexual harassment to be a distinct form of discrimination, and will cover all employers, regardless of the number of employees, with respect to claims of sexual harassment. Further, the Act increases the statute of limitations for gender-based harassment to three years. Previously, the NYCHRL only applied to employers with four or more employees and had a statute of limitations for gender-based harassment of only one year.
  • Effective September 6, 2018, all New York City employers will be required to display a new anti-sexual harassment poster in a conspicuous location, which will be created by the NYC Commission on Human Rights. The poster will define sexual harassment and how to report it. It must be displayed in both English and Spanish.
  • On April 1, 2019, New York City employers with 15 or more employees will be required to conduct annual sexual harassment trainings. These trainings must be “interactive” and explain what sexual harassment is, along with the process of reporting complaints internally and to the respective federal, state and city administrative agencies. Employers must keep records verifying that employees have completed the training.

The Act was enacted on the heels of New York State-wide legislation signed into law by Governor Andrew Cuomo in April. Some of the highlights of the new State-wide laws include:

  • Effective immediately, the New York State Executive law is amended to impose liability upon all employers for gender-based harassment experienced by non-employees, such as contractors, vendors, or consultants.
  • Effective July 11, 2018, New York employers are prohibited from including a non-disclosure agreement in any settlement of a sexual harassment claim unless the complainant specifically requests confidentiality.
  • Effective July 11, 2018, New York employers are prohibited from including mandatory arbitration provisions for allegations or claims of sexual harassment “except where inconsistent with federal law.”
  • Effective October 9, 2018, all New York employers must either adopt or create a policy that equals or exceeds the model policy and training program which will be developed by the New York Department of Labor in collaboration with the Division of Human Rights.

In light of these new laws, New York employers should: (a) review and revise as necessary their sexual harassment training policies and practices to ensure compliance with City and State laws; (b) as soon as the anti-sexual harassment posters become available, New York City employers should be prepared to post the posters in a conspicuous setting in the workplace; (c) review their standard settlement agreements to make sure that they are in compliance with New York’s new laws on the prohibition of non-disclosure agreements in harassment-based settlements; and (d) assess any mandatory arbitration provisions in their contracts or policies to comply with these new laws. This aspect of the law will likely be challenged in court and could take several years before a final conclusion is reached, but companies would be wise to consider the potential impact that the law has on pre-existing and future agreements.

The Labor and Employment Team at Hogan Lovells has extensive experience providing interactive anti-harassment training, developing anti-harassment policies and complaint procedures, and guiding companies on the best practices for complying with Federal and State labor and employment laws.

 

 

Employers and employees entering into separation or settlement agreements have traditionally agreed to nondisclosure clauses that prohibit disclosure of the agreement or the circumstances leading to its execution. Although these clauses have not previously been subject to much controversy and considered to provide valuable closure for employer and employee, the #MeToo movement has generated much criticism of such clauses when related to allegations of sexual harassment, arguing they have the detrimental effects of silencing victims and enabling repeat offenders.  This criticism has led to new trends in the law which discourage such nondisclosure clauses and agreements.

The most significant change so far is in federal tax law, which has created a disincentive to nondisclosure provisions in settlements of sexual harassment or abuse claims. Specifically, Congress’s recently enacted Tax Cuts and Jobs Act prohibits employers from deducting as a business expense (under Internal Revenue Code Section 162)  “(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment.”

At the state level so far, California, New Jersey, New York, Pennsylvania and Washington have introduced legislation aimed at curtailing the use of nondisclosure provisions that restrict discussions or disclosure of workplace sex harassment. Each state proposal has its own specifics, but in general they render invalid the use or enforcement of non-disclosure provisions related to sexual harassment, either as part of any nondisclosure agreement, or in the context of settlement agreements, or both.  As of the date of this article, legislation is still pending in California, New York, and Pennsylvania, and New Jersey’s bill did not pass in the state’s last legislative session.  Washington’s bill was enacted into law on March 21, 2018 with an effective date of June 7, 2018 and covers nondisclosure agreements entered into as a condition of employment, but permits confidentiality provisions in settlement agreements.  The text of the Washington law can be found here.

Employers should stay up to date concerning applicable laws in connection with nondisclosure agreements. And when nondisclosure agreements exist, employers should remember that they may not interfere with an employee’s right to file a charge with or communicate with U.S. Equal Employment Opportunity Commission (“EEOC”).  Although a settlement agreement can bar an individual from seeking monetary or other individual relief at the EEOC, courts and the EEOC have invalidated agreement terms that interfere with an individual’s nonwaivable right as a matter of public policy to file a charge or otherwise communicate with the EEOC.

For more information or for any other employment matter impacting your business, please contact the authors of this article or the attorney you regularly work with at Hogan Lovells.

 

Since the rise of the #MeToo movement, employers are facing increased challenges – changed employee expectations, allegations of “old” harassment or renewed attention to previously “resolved” claims, and a heightened attention to such things as bullying, off-site conduct, and workplace romances.

Join our panel of Hogan Lovells lawyers for a discussion on what’s new in this area, as well as some of the thornier issues employers have long faced, including:

  • What constitutes harassment in the first place, and should employers be concerned about conduct that is not legally prohibited?
  • When alleged harassment occurs, who should investigate, and how do employers know when an outside investigator should be brought in?
  • What if an alleged victim does not want to cooperate?
  • Are an employer’s obligations different when a high-level manager or executive is accused?
  • How do you impose corrective action without over or under doing it?
  • In addition to policies and training, what best practices can help improve a workplace culture to prevent harassment?

The panel will take place on April 26, 2018, from 9:00 to 10:30 a.m. in Hogan Lovells’ Washington D.C. office. Registration, networking, and a light breakfast will begin at 8:30 a.m. CLE credit is pending.

Kindly RSVP by April 23, 2018.

We look forward to seeing you.

Agenda
8:30 a.m. – 9:00 a.m. Breakfast and networking
9:00 a.m. – 10:30 a.m. Panel Discussion

Contact

Trevor Godley
trevor.godley@hoganlovells.com

Hogan Lovells invites you to a panel discussion focused on best practices for addressing workplace sexual harassment allegations.

Most companies have anti-harassment policies, but do employees and managers know what these policies really mean? Are these policies enforced consistently across the organization? What are the employer’s obligations when the allegation involves a high-ranking manager or executive? And what if the allegations are true?

Join our labor & employment and internal investigation attorneys as they answer these and other thorny questions on this important topic. In addition, our panelists will discuss the following:

    • When to, how to, and who should conduct an internal investigation
    • Legal liability and other consequences for both the company and the harasser, including the potential impact on separation, settlement and non-disclosure agreements
    • Public relations considerations and the impact of social media in the current climate of harassment
    • International implications, including complications relating to foreign employees and U.S. employees abroad

The panel will take place on March 22, 2018 from 5:00 – 6:00 p.m. in the Hogan Lovells’ New York office. Registration begins at 4:30 p.m. CLE credit is pending. A reception with light food and refreshments will follow the discussion.

Kindly RSVP here.

We look forward to hosting you.

Agenda
4:30 p.m. – 5:00 p.m. Registration
5:00 p.m. – 6:00 p.m. Panel Discussion
6:00 p.m. – 7:00 p.m. Reception

Contact

Matthew Rimi
matthew.rimi@hoganlovells.com