This page will be updated as new regulations are enacted across the country. Please use comments section below to request additions or amendments.
Current as of September 21, 2018
In the last few years, the persistent challenge of sexual harassment has dominated news cycles. In response, multiple state legislatures in the U.S. are considering and passing new laws that will change the way employers address workplace and sexual harassment.
Trends indicate that many states are or will mandate strict new anti-sexual harassment policies, processes and training requirements. New York State and New York City have each passed such legislation in 2018, and other states, including California, Maryland, Delaware and Colorado are legislating similar requirements.
NAVEX Global recommends customers discuss the new legal requirements within these laws with their legal counsel to ensure their organizations are able to comply with the regulations and align to evolving behavioral expectations. We further recommend that organizations use this as an opportunity to not simply abide by the letter of the law, but to further define their code of conduct, anti-harassment policies and organizational culture to create environments of civility and respect for all employees.
Under House Bill 2020 victims of sexual assault and sexual harassment would be allowed to break nondisclosure agreements without penalty when communicating with law enforcement or in court proceedings. The bill also prohibits the use of taxpayer money to be used by Arizona public officials to settle sexual harassment or sexual misconduct claims.
Late August 2018, California lawmakers sent a pair of bills to the governor’s office with the intent of increasing corporate transparency on the issue of sexual harassment in the workplace.
These bill are designed to:
- Prohibit employers from requiring nondisclosure agreements related to sexual harassment as a condition for employment (get or keep a job)
- Ban settlements in cases regarding sexual harassment or discrimination that attempt to keep circumstances confidential
The Disclosing Sexual Harassment in the Workplace Act of 2018, in effect as of October 1, 2018, makes certain provisions in employment contracts, policies or agreements null and void when requiring employees to waive rights or remedies in claims of sexual harassment.
In addition, the act requires employers with 50 or more employees to disclose:
- Number of settlements made after a sexual harassment allegation
- Number of settled allegations of sexual harassment against the same employee
- Number of settlements of sexual harassment complaints that included non-disclosure provisions
New York [Adopted]
In 2018, New York City and New York State each passed anti-sexual harassment laws that specify new policy and training requirements.
For employers in New York, the new laws will:
- Impact nearly all private employers in the state
- Require annual training of all employees and managers
- Establish a new liability standard that increases the importance of training third parties who interact with employees or workplace
Every employer in the New York State is required to adopt a sexual harassment prevention policy that meets or exceeds the state’s requirements. Among other elements, the policy must:
- Prohibit sexual harassment consistent with guidance issued by the New York Department of Labor in consultation with the Division of Human Rights
- Provide examples of prohibited conduct that would constitute unlawful sexual harassment
- Include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws
- Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties
- Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially
- Clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue
- Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful
The training must:
- Be interactive (which can include online/eLearning, in-person training or a blended approach)
- Include an explanation of sexual harassment consistent with guidance issued by the New York Department of Labor in consultation with the Division of Human Rights
- Include examples of conduct that would constitute unlawful sexual harassment
- Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment
- Include information concerning employees’ rights of redress and all available forums for adjudicating complaints
- Include information addressing conduct by supervisors and any additional responsibilities for such supervisors
New York State requires new policies are in place and each employee receives training on an annual basis, starting October 9, 2018. New York City requires similar activity by April 1, 2019.
Tenn. Code Ann. § 50-1-108 prohibits employers from requiring an employee or prospective employee to sign or renew a non-disclosure agreement regarding sexual harassment in the workplace as a condition of employment. The law applies to NDAs executed or renewed after May 15, 2018.
In the event an employer terminates an employee for refusing to sign an NDA regarding sexual harassment – and therefore violating the statute – the employee may have grounds to claim retaliatory discharge under Tenn. Code Ann. § 50-1-304. According to the source, “It is not clear what remedy a prospect employee would have if not hired because of refusing to sign an NDA.”
H. 707, aka “An Act Relating to the Prevention of Sexual Harassment” went into effect on July 1, 2018 and enacts extensive, and some groundbreaking, protections for employees and prospective employees. The Act applies to anyone “hired to perform work or services” and therefore covers all employees, including contractors and unpaid interns. Similar to new NDA legislation in other states, H. 707 effectively prohibits employment agreements that require claims of sexual harassment to be resolved through arbitration.
Among other provisions, The Act directs the development of an outreach program to establish a hotline and web reporting system to report complaints of sexual harassment directly to the Vermont Human Rights Commission of the AG’s office.
Effective as of June 7, 2018, three new Washington State laws are intended to protect targets of sexual harassment and sexual assault in the workplace.
- Disclosure and Discussion of Sexual Harassment and Assault (S.B. 5996): Prohibits the signing of a nondisclosure agreement regarding sexual harassment or sexual assault as a prerequisite for employment. This applies to those behaviors at work, work-related events (coordinated by the company or employees), and between employee and employer off premises.
- Law Barring Mandatory Private Dispute Resolution (S.B. 6313): Voids the ability to enforce contracts or agreements that waive an employee’s rights to publicly file complaints regarding sexual harassment and sexual assault.
- Model Policies (S.B. 6471): Designed to encourage the adoption and implementation of policies that create safer working environments that eliminate retaliation and fear of status or opportunity repercussions.