We are pleased to share a recent Bloomberg Law article, “How Employers Can Keep ‘Me Too’ Evidence From the Jury,” which provides guidance for employers to keep “me too” evidence—not to be confused with the #MeToo movement—out of trial. This evidence, which is from parties not involved in the litigation, can taint the jury and
President Biden is expected to sign into law landmark #MeToo legislation, which allows a plaintiff to elect not to arbitrate covered disputes of sexual assault or sexual harassment. The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” amends the Federal Arbitration Act (FAA), by narrowing its scope and applicability. The bill’s passage had bipartisan support in both the House and the Senate.
Historically, some employers have implemented arbitration programs that require both the employer and its employees to arbitrate most or all types of employment claims, including claims alleging sexual harassment or sexual assault. Largely in response to the #MeToo movement, which began in late 2017, some states passed laws designed to prohibit or restrict employers from requiring employees to arbitrate sexual harassment or sexual assault claims. For example, in New York, employers are prohibited from requiring the arbitration of sexual harassment claims except where inconsistent with federal law. New York’s prohibition on mandatory arbitration in relation to sexual harassment claims went into effect on July 11, 2018, and it has applied to contracts entered into on or after that date. New Jersey and California have enacted similar laws. New Jersey’s law prohibits any provision of an arbitration agreement that waives a substantive or procedural right or remedy relating to employment discrimination, harassment, and retaliation claims. This law applies to all contracts and agreements entered into, renewed, modified, or amended on or after March 18, 2019. Further, on October 10, 2019, California enacted a law, which prohibits employers from requiring employees to sign new mandatory arbitration agreements concerning disputes arising under the California Fair Employment and Housing Act (FEHA) or California Labor Code. California’s law applies only to agreements dated January 1, 2020 or after. However, courts have found these statutes to be pre-empted by the FAA.
On February 7, 2022, the U.S. House of Representatives overwhelmingly passed H.R. 4445, 335 to 97. Shortly thereafter, on February 10, 2022, the bill passed the Senate in an unrecorded voice vote.Continue Reading Landmark #MeToo Legislation Allows Employees To Pursue Sexual Harassment & Assault Claims In Court, Rather Than Arbitration
A proposed bill in California seeks to protect workers against nondisclosure agreements and empower them to speak out about alleged acts of discrimination, including racism. Senate Bill 331, known as the Silenced No More Act, was introduced in February 2021 and seeks to expand protections against confidential settlements to cover all forms of harassment or discrimination under California law, including on the basis of race, ancestry, religion or gender identity. If passed, the law will impose greater restrictions on companies’ freedom to contract settlement and non-disparagement agreements.
New Obligations if SB 331 Passes
- SB 331 will expand the existing prohibition of provisions that prohibit discussing sexual harassment in the workplace to discussing any type of harassment (i.e., race, age, religious harassment). (See discussion of SB 820 below.)
- The law will prohibit non-disparagement agreements that prohibit the disclosure of information about unlawful acts in the workplace.
- The law also will create new obligations, such as the requirement to notify the employee that the employee has a right to consult an attorney regarding the agreement and giving the employee “a reasonable time period of not less than five business days” in which to do so.
Several Employer-Friendly Changes to Observe
- The law clarifies that including a general release or waiver of all claims in an agreement related to an employee’s separation from employment does not violate the statute.
- It verifies that the law does not prohibit a provision that precludes the disclosure of the amount paid in settlement of a claim.
- It confirms that employers may protect trade secrets, proprietary information, or confidential information that does not involve unlawful acts in the workplace.
This summer the U.S. Women’s Soccer team won more than the World Cup – they’ve had tremendous success in garnering public support in their bid for equal pay. However, beyond the star power of Alex Morgan and Megan Rapinoe, pay equity continues to be a hot button issue for employers in the U.S.
California is known as one of the most progressive, pro-employee states in the country. But if the last several months are any indication, Illinois is quickly catching up.
Here’s a quick overview of what’s happening in the prairie state:
Illinois Wage Payment and Collection Act
What’s New? As of January 1, 2019, employers must reimburse employees for all “necessary” expenses. So what’s a necessary expense? Anything required of the employee in the discharge of his/her employment duties that “inure to the primary benefit of the employer.” Computers, cell phones, uniforms, etc. may all constitute “necessary” expenses that the employer is required to reimburse.
Takeaway: Employers should review their policies, job descriptions, and third party contracts to determine which positions/roles may result in necessary expenditures.Continue Reading Is Illinois The New California For Employers?
In June, a federal district court in New York ruled that the Federal Arbitration Act (FAA) preempts a recent state law prohibiting mandatory arbitration agreements in sexual harassment cases. Latif v. Morgan Stanley & Co. LLC marks the first time that a federal court has ruled on this issue.
Continue Reading NY Ban On Mandatory Arbitration Of Sexual Harassment Claims Overturned
On April 10, the EEOC released its charge filing statistics for Fiscal Year 2018, which ran from October 1, 2017 to September 30, 2018. These annually disclosed statistics reveal continued trends in the employment litigation space and provide an opportunity for employers to ensure their policies and practices address issues arising in the ever-changing modern workplace.
Continue Reading EEOC FY 2018 Enforcement & Litigation Data Reveal Trends In Employment Litigation
Although federal and state laws have prohibited employment-related sexual harassment and sex discrimination for decades, the #MeToo movement inspired several states and local jurisdictions to pass laws targeting sexual harassment in the workplace more directly. The new laws address issues such as mandatory anti-harassment training, workplace policies, confidentiality in settlement agreements, and the arbitrability of…
In the wake of the #MeToo movement, a number of states (and New York City) now mandate workplace sexual harassment prevention training.
The chart below is intended to help multi-state employers keep track of their obligations across the country.Continue Reading Quick Guide To Harassment Prevention Training Requirements Across The US
As we previously reported, New York State’s new sexual harassment prevention policy and training requirements take effect today, October 9, 2018.
After issuing draft documents in August, the State released final guidance clarifying the new requirements just last week, giving employers little time to get their ducks in a row before the October 9 deadline.Continue Reading Effective Oct. 9, 2018: NY State Sexual Harassment Policy & Training Requirements