The use of mandatory employment arbitration agreements has long been the subject of debate, but the controversy has intensified since the inception of the #MeToo movement. Some legislators believe that mandatory arbitration of sexual harassment claims silences harassment victims and perpetuates harassment.

  • At the federal level, in December 2017, a bipartisan group of lawmakers led by Sen. Kristen Gillibrand (NY) introduced a bill in the Senate called the “Ending Forced Arbitration of Sexual Harassment Act,” which would prohibit mandatory arbitration of sexual harassment claims, while leaving other claims subject to arbitration agreements. Last month, it received significant support when the National Association of Attorneys General (NAAG) sent a letter to leaders in Congress, urging the passage of the legislation. 56 attorneys general of the United States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, and the Virgin Islands called on Congress to allow victims of workplace sexual harassment claims to have their days in court and be afforded the “procedural and substantive due process” that comes with proceeding with a lawsuit. The bill is currently pending before the Senate Health, Education, Labor, and Pensions Committee.
  • In early January, New York Andrew Cuomo unveiled a series of proposed new laws to be considered as part of the state budget that would also void forced arbitration policies that prevent sexual harassment cases from being brought in court. On March 12, the Republican-led state Senate passed legislation (SB S7848A) which, among other things, bans mandatory sexual harassment arbitration clauses. Democrats say the proposal doesn’t go far enough. The bill will now be sent to the state Assembly.

It remains to be seen whether eliminating mandatory arbitration of sexual harassment claims would actually have the desired effect. Proponents believe that victims would prefer to have harassment claims litigated in public. However, some victims of sexual harassment are averse to this kind of attention for a variety of reasons, and mutual arbitration agreements allow those individuals to seek remedies to the fullest extent of the law without filing a public complaint. However, some argue that secrecy around sexual harassment and its consequences has only perpetuated harassment, and the recent sharing of experiences has helped uncover long-hidden stories of harassment.

We will continue to monitor legislative developments on this front and keep you posted. In the meantime, employers with mandatory arbitration policies should be prepared for such agreements to be potentially void as to sexual harassment claims in the near future. Up next, we’ll look at legislative efforts to eliminate confidentiality provisions in the settlement of sexual harassment claims.

For more information, please contact your Baker McKenzie lawyer.

With the current focus on US multinational operations around the world and the pressure to meet globally acceptable and locally effective compliance, companies regularly turn to global employment policies as a tool to manage their local employment-related risks. Often the desire is to house these policies in a single “global” employment handbook. As efficient as it may seem to have a single employment handbook, a truly one-size-fits-all single, global handbook most often is not a realistic option. This paper discusses the potential problem with a single “global” handbook and outlines three approaches to get US multinationals to the same result while fully complying with local laws.

Click here to read the entire article, originally published in Bloomberg BNA.

On the heels of the Second Circuit’s decision that sexual orientation discrimination violates Title VII, advocates for LGBTQ rights scored another victory in federal court. On March 7, 2018, the Sixth Circuit unanimously ruled in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. that discrimination on the basis of transgender and transitioning status violates Title VII’s prohibition on sex-based discrimination.

Continue Reading Another Federal Court Victory For LGBTQ Rights–The Sixth Circuit Follows The Lead Of The Second And The Seventh Circuits

Baker McKenzie partner Joe Deng introduces Gil Zerrudo to talk about employment laws in the Philippines and give an overview of what has changed in 2017 as well as what we can expect for the year ahead.

Key Takeaways:

  1. Employers should review their contingent workforce due to greater enforcement
  2. Employers should take stock of talent pipeline to prepare for potential downturn in global economic activity
  3. The Philippines is a good and welcoming country for employers that are looking to expand

Download now on iTunes | Android | Stitcher | TuneIn | Google Play.

Baker McKenzie partner Ben Ho introduces Nadege Dallais to talk about employment laws in France and give an overview of what has changed in 2017 as well as what we can expect for the year ahead.

Key Takeaways:

  1. It should become easier for international companies in France to demonstrate that they are experiencing financial difficulties when trying to support economic dismissals.
  2. Damages in connection with unfair dismissals will become a bit more predictable because French law now places both a floor and a ceiling on the amount of damages available.
  3. Employee representation will become more simplified with employee delegates, health and safety committee and works councils being merged into one social and economic committee known as the CSE.
  4. In-house collective bargaining agreements should introduce more flexibility to employers because they will now be able to govern areas that historically were only set by law.

Download now on iTunes | Android | Stitcher | TuneIn | Google Play.

We are pleased to present The Global Employer Magazine 2018 Horizon Scanner. Our easy-to-digest overview of global and regional trends and developments in global employer and labor law is designed to help equip you for the year ahead.

In this issue, we feature:

  • A global overview of the key trends and developments impacting global employers including nationalism and mobility, the gender pay gap, the rise of the modern workforce
  • Regional checklists for the year ahead and data privacy compliance
  • Regional outlooks looking at how the trending global employment law issues are playing out across Asia Pacific, EMEA, Latin America and North America

Click here to download.

Join us for a breakfast briefing on March 27 in Palo Alto for an update on the latest trends and regulations impacting multinational employers in Latin America. Hear from leading practitioners in five key LATAM jurisdictions – Argentina, Brazil, Colombia, Mexico and Venezuela – as we address hot topics that employers are facing right now including:

  • Managing a modern workforce, from contingent workers to outsourcing service models
  • Addressing the gender pay gap, including gender pay legislation and expectations
  • Complying with changes in termination and anti-harassment legislation
  • Predicting the impact of new leadership in Argentina, Brazil, Colombia, Mexico and Venezuela
  • Preparing for significant labor reform in Argentina, Brazil and Mexico
  • and more!

Click here more details, including how to register.

In our Global Employer Monthly eAlert, we capture recent employment law developments from across the globe to help you keep up with the ever-changing employment law landscape around the globe.

In this month’s issue, we share updates from Argentina, Australia, Austria, Brazil, Canada, Chile, France, Italy, the Netherlands, South Africa, Sweden, Taiwan, Thailand, the United Kingdom and the United States.

Click here to view.

Jordan Kirkness and Susan MacMillan in our Toronto office report that the government of Ontario announced yesterday that it will introduce new legislation to require certain employers to track and publish their compensation information.

The proposed legislation is part of the province’s initiative to advance women’s economic status and create more equitable workplaces (the initiative is titled “Then Now Next: Ontario’s Strategy for Women’s Economic Empowerment”). Yesterday’s announcement comes on the heels of last week’s budget plan in which the Canadian federal government outlined proposed proactive pay equity legislation that would apply to federally regulated employers — see here for our article on the proposed federal legislation.

For more on Ontario’s new pay transparency legislation, see here.