Alert: Disclosing Sexual Harassment in the Workplace Act of 2018
Check your Employment Policies
To prepare for October 1, employers should review employment agreements and relevant employment policies to ensure they do not require their employees to submit to mandatory arbitration for sexual harassment or retaliation claims. This is a similar provision to the New York legislation that we told you about in our blog last month. An employer may not take adverse action (i.e. discharge, suspension, demotion) against employees who refuse to agree to mandatory arbitration, and employers who enforce or attempt to enforce these now-void arbitration provisions will be liable for the employee’s reasonable attorney’s fees and costs. If your employment policies do not have any requirement that employees submit to arbitration or waive a jury trial for harassment claims, you need to do nothing to comply with this provision of the new law.
Of course, for some employers, it may not be quite that simple. The Disclosing Sexual Harassment in the Workplace Act of 2018 states that this first obligation applies “except as prohibited by federal law.” Employers should determine whether any of their agreements are covered by the Federal Arbitration Act (FAA), which could override some of the obligations imposed by the new Maryland law. The Supreme Court has held that the FAA may supersede state laws that would eliminate required arbitration. So, it is possible that the new Maryland Act’s anti-arbitration provisions could be preempted by the FAA for some companies. If you believe that your required arbitration policy would be enforceable under the FAA, we strongly recommend that you seek the advice of counsel for confirmation.
Reporting Requirements under the Disclosing Sexual Harassment in the Workplace Act
The second provision of the new law requires employers with 50 or more employees to electronically report data to the Maryland Commission on Civil Rights stating:
the number of settlements made by an employer involving sexual harassment allegations by an employee;
the number of times the employer has paid a settlement to resolve a sexual harassment allegation involving the same alleged harasser over the last ten years (and whether the employer took any action against the alleged harasser); and
the number of sexual harassment settlements made by the employer that require the terms of the settlement to remain confidential.
The surveys, which have not yet been developed, must be filed on or before July 1, 2020, and again on or before July 1, 2022. All Maryland employers with 50 or more employees (including out-of-state employers with 50 or more employees in Maryland), should start preparing now to collect the information necessary to respond to this mandated survey.
You may be wondering what the Commission will do with the information it collects. The law directs the Commission to post on its website aggregate data of the responses from employers for each of the bullet points listed above. The Commission will also review ‘a random selection’ of survey responses and prepare an executive summary for the Governor and the legislature. A provision in the statute also allows, upon request, a member of the public to inspect a specific employer’s survey responses.
Your Compliance Checklist
Well before October 1, 2018, you should
Review your employment policies and revise them to ensure compliance with the Disclosing Sexual Harassment in the Workplace Act of 2018.
If you believe that your mandatory arbitration policies are enforceable under the Federal Arbitration Act, seek legal advice to ensure compliance.
Plan to train supervisors and managers to ensure compliance with the Act.
If you do not already do so and if you have 50 or more employees, begin tracking sexual harassment settlements and compiling information on past settlements to prepare for the 2020 and 2022 surveys.
Should you need any assistance or further information, please give us a call.