The #MeToo movement has caught the attention of state legislatures across the country. So far, twelve states—Arizona, California, Delaware, Illinois, Louisiana, Maryland, Nebraska, New York, Oregon, Tennessee, Washington State, and Vermont—have enacted new laws providing protections related to sexual harassment in private and public sector workplaces.FN1 Three main categories of legislation have emerged as areas of focus for the new laws:
1. Prohibition of Non-Disclosure Agreements
Seven states (Arizona, California, Maryland, New York, Tennessee, Vermont, and Washington) have restricted or prohibited companies from using Non-Disclosure Agreements (“NDAs”) in settlement agreements.FN2 California’s new law is unique because it allows for the dollar amount of a settlement to remain private; however, the non-disclosure of the underlying sexual harassment is permitted only if the accuser agrees to keeping those details private.FN2
2. Prohibition of Mandatory Arbitration of Sexual Harassment Claims
The laws passed in Maryland, New York, Vermont, and Washington prohibit use of mandatory employment clauses in matters involving sexual harassment.FN3 If such laws withstand challenges based on the broad federal policy favoring arbitration,FN4 employers and claimants in these states will need to litigate claims of workplace sexual harassment publicly in court.
3. New Training Obligations
Under laws passed in California, Delaware, Louisiana, Maryland, New York, Oregon, and Vermont, employers will need to provide periodic anti-harassment training.FN5
Employers operating in these states should contact employment counsel for additional details on the new laws. We expect similar laws will be proposed throughout the United States in 2019, and will provide updates. Companies therefore are well served by maintaining clear anti-harassment policies; requiring reporting of policy violations; training managers and ensuring non-managers are well aware of anti-harassment policies and reporting expectations; and thoroughly investigating complaints of harassment.
FN1: See States Take Up #MeToo Mantle in Year After Weinstein, Bloomberg Law (Oct. 3, 2018) (https://news.bloomberglaw.com/daily-labor-report/states-take-up-metoo-mantle-in-year-after-weinstein), and the following bills and proposed legislation:
Arizona House Bill 2020 (https://legiscan.com/AZ/text/HB2020/id/1787713);
California Senate Bill No. 820 (http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB820);
Delaware House Bill 360 (https://legis.delaware.gov/BillDetail/26828);
Louisiana Act No. 270 (https://legiscan.com/LA/text/HB524/id/1798063);
Maryland Senate Bill 1010 (http://mgaleg.maryland.gov/2018RS/bills/sb/sb1010e.pdf);
New York Senate Bill S7507C (https://legislation.nysenate.gov/pdf/bills/2017/S7507C);
Oregon House Bill 4058 (https://olis.leg.state.or.us/liz/2018R1/Downloads/MeasureDocument/HB4058/Enrolled);
Tennessee House Bill 2613 (http://www.capitol.tn.gov/Bills/110/Bill/HB2613.pdf);
Washington House Bills S.B. 5996, S.B. 6313, and S.B. 6471
Vermont House Bill No. 183 (https://legislature.vermont.gov/assets/Documents/2018/Docs/ACTS/ACT183/ACT183%20As%20Enacted.pdf).
FN2: See https://news.bloomberglaw.com/daily-labor-report/states-take-up-metoo-mantle-in-year-after-weinstein; https://news.bloomberglaw.com/daily-labor-report/only-claimants-can-seek-ndas-in-calif-harassment-settlements-1
FN5: See, e.g., https://www.employmentlawspotlight.com/2018/08/new-york-state-issues-guidance-for-compliance-with-new-sexual-harassment-law/; https://www.employmentlawspotlight.com/wp-content/uploads/sites/18/2018/08/NYS-Model-Sexual-Harassment-Prevention-Training.pdf