Harvey Weinstein, Kevin Spacey, Louis C.K., Al Franken, Charlie Rose, Matt Lauer. These are just a few of the men who have been the subject of sexual harassment, sexual assault, and/or inappropriate conduct allegations in the last year or so. These public allegations spawned the #MeToo movement that doesn’t appear to be stopping anytime soon.
But has the #MeToo movement ushered in a new era in how we deal with harassment as a society, a community, or an organization? It may have. We are seeing more efforts in a number of ways to prevent sexual harassment in the workplace.
One such effort is the plethora of new laws from state governments throughout the nation. As of the writing of this article, the following states have enacted, or are currently working to pass, some form of sexual harassment law: Arizona, California, Colorado, Connecticut, Delaware, Maryland, New York, Tennessee, Vermont, and Washington.
While the laws vary from state to state, we are beginning to see a pattern in four major categories: policies, training, confidentiality/nondisclosure agreements, and arbitration.
The new laws seem to be pretty clear that employers must have written antisexual harassment policies implemented with their staff. In most cases, these rules even go so far as to make clear what the policy must contain. For example, New York’s law includes a “statement prohibiting sexual harassment” and “examples of prohibited conduct that would constitute sexual harassment” among their eight specific requirements. As a result, even if you already had a written policy that was issued to your employees, you may have to make significant changes to be compliant with the new rules.
Good business practices include some kind of harassment and sexual harassment prevention training for all employees. There are good reasons for employers to be conducting this kind of training regardless of any law that may or may not be applicable. After all, without training, how can employers ensure they’ve taken appropriate steps to keep their workplaces free of these issues and, subsequently, protect themselves from liability?
Previously, these laws were recommended for smaller employers (50 or fewer employees), but these new laws are starting to change that. For example, New York’s new law requires all employers, regardless of size, to conduct training before October 2019 with all current employees and with all new employees as soon as possible after hiring.
This training should include aspects of harassment prevention such as an explanation of harassment and sexual harassment, examples of conduct that would constitute unlawful harassment, statutory provisions that are applicable, remedies available to victims, and information about filing complaints. This training also may include special training for supervisors and managers who must not only hold their conduct to a higher standard but also be prepared to deal with complaints they may receive.
Prohibition of confidential settlements
In the past, if employers found themselves ensnarled in a sexual harassment allegation, they could settle the problem with the victim by creating a confidentiality agreement. In other words, if the employee agreed to keep quiet and not further pursue any type of litigation, that employee would receive a lump sum from the employer as a settlement of the matter. New laws prevent these kinds of agreements. Further, the new Tax Cuts and Jobs Act under the federal government has put other limitations on these types of settlements in terms of the IRS and taxation.
Prohibition on mandatory arbitration
Finally, these new laws ban an employer’s ability to have contractual provisions that mandate arbitration for any allegations or claims of sexual harassment, except where inconsistent with federal law.
In one way or another, both federal and state governments are starting to take this issue more seriously. If you’re in a state that has or will have legislation on this issue, learn the rules and takes steps to comply. Your best bet if you are in state without these laws? Take some of these actions anyway. No one is hurt when harassment of any kind is prevented in the workplace.
Tim Twigg is the president of Bent Ericksen & Associates and Rebecca Boartfield is an HR compliance consultant. For more than 30 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more, call (800) 679-2760 or visit bentericksen.com.