#MeToo leads to training mandates (and more)
Only a few new state and local requirements for sexual harassment training have emerged in the past year, writes David W. Garland of Epstein Becker Green, but employers should still be wary.
This installment of "HR Legal Briefing" is written by David W. Garland, a Member of the Firm and Chair of Epstein Becker Green’s National Employment, Labor & Workforce Management Steering Committee. Garland is frequently retained in matters involving clients' most senior executives and in high-profile, high-stakes and highly sensitive cases. He can be reached at [email protected]. For additional information and resources, visit EBG’s "Halting Harassment" webpage.
In our last column, we addressed the flurry of lawsuits brought by the U.S. Equal Employment Opportunity Commission (EEOC) aimed at sex harassment in the workplace. States and cities, too, have been busy this year, crafting their own response to the #MeToo movement. Both New York state and New York City have enacted new laws requiring employers to provide training on sex harassment in the workplace. Although the number of these laws remains small, these requirements impact employers with operations there, and they come on top of requirements in some states that existed before the #MeToo movement. Other legislative responses have also occurred in the first half of this year, such as banning nondisclosure provisions in settlement agreements, and more mandates are likely to come.
Most recently, while many were trying to enjoy the last bit of summer vacation before Labor Day, New York state launched a website related to the sex harassment training mandated earlier in the year. Although subject to public comment through Sept. 12 (not nearly a long enough period to provide sufficient comments), the website states that all employers must complete the training of all current employees by Jan. 1, 2019 — less than four months from now. It also provides that beginning the same day, all new hires must complete training within 30 days of their hire. The law also spells out what must be included in a company’s sex harassment policy and reporting procedure.
When finalized, New York state’s new training requirements will likely require employers to provide training for all employees, including temporary and transient employees — which means employees who work "just one day" for the employer or "just one day" in New York. Moreover, New York employers will be required to provide training that satisfies minimum standards spelled out by the state. Among other things, it must be interactive, include an explanation of sexual harassment consistent with state-issued guidance, include examples of conduct that would constitute unlawful sexual harassment and include information about remedies available to victims of sexual harassment.
Not to be outdone, New York City this year enacted its own anti-harassment training law. It also requires training on the responsibilities of supervisory and managerial employees and defining and providing examples of retaliation. Violations can lead to penalties of up to $250,000.
Even before the #MeToo movement, California had imposed requirements on its employers with 50 or more employees, including employees outside of California, to provide supervisors within California with two hours of sexual harassment training every two years. Likewise, Connecticut has required employers with 50 or more employees to ensure that supervisory personnel receive at least two hours of such training, and Maine has mandated that employers with 15 or more employees train all new employees, and provide specialized training for supervisors and managers, within one year of hire. These requirements may be enhanced through further legislation, and additional states are likely to follow with their own training regimes.
States have not stopped with merely setting training requirements, however. Arizona, Louisiana, New York and Vermont have enacted laws restricting the use of, or permitting a limited breach of, confidentiality provisions in agreements of sex harassment claims. Bills have been introduced in the legislatures of numerous other states, including California, Florida, New Jersey, Pennsylvania and Virginia, that would ban or restrict the use of non-disclosure provisions in settlement agreements.
These developments, like others we have discussed, make clear that the C-suite must continue to address the impact of the #MeToo movement throughout the company — which also means complying with these new training requirements and other regulations. Failure to do so is not an option.