Dealing with the challenges generated by the #METOO Movement (my Topic at the Conference) – while EEOC harassment claims have not yet surged in industries outside of entertainment, media and the political world, the #METOO Movement has permanently altered women and men’s perception of the workplace.
New Attitudes or Previously “Hidden” Attitudes.
This movement or event differs from any previous focus on harassment. Not just the size and ugliness of the events … the #METOO Movement has surfaced and challenged a whole range of attitudes and practices, including the long simmering debate about women being paid less than men in so many settings. The longer-term effects of the #METOO movement will be the legal changes on pay and possibly even the long debated Comparable Pay Law.
I recommend the penetrating observations found in the Harvard Business Review’s MANAGING #METOO:
- But first they (employers) must understand the problem, and that’s not as easy as it sounds. Sexual harassment is a form of dysfunctional behavior within the workplace — and a chronic phenomenon with a long history.
- Research indicates that more than 70% of women have experienced it on the job, but many incidents of it go unreported.
- One reason is that the legal definition of sexual harassment is rarely understood. Further complicating the issue, no consensus has formed around lay definitions of sexual harassment, which differ from the legal definition and have changed over the years.
- In particular, men and women differ in their understanding of what constitutes it.
I consider myself reasonably enlightened but recent events have demonstrated that we must recognize that our individual perceptions may not be entirely accurate.
Omnibus Law efforts – New York example.
- Mandatory Sexual Harassment Training and Policies
All employers must adopt a sexual harassment prevention policy to be distributed in writing to employees, and conduct annual sexual harassment prevention training. The bill directs the New York State Department of Labor to work with the New York State Division of Human Rights to develop both a model sexual harassment policy and model training program. Employers can then choose whether to adopt the models prepared by the state or develop their own, so long as their policies and training meet or exceed the standards contained in the models. This law will take effect October 9, 2018.
The model sexual harassment prevention policy must include the following:
- a statement prohibiting sexual harassment;
- examples of prohibited conduct that would constitute sexual harassment;
- information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims, along with a statement that there may be additional applicable local laws;
- a standard complaint form;
- the procedure for the timely and confidential investigation of complaints;
- a statement informing employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
- a statement that sexual harassment is a form of employee misconduct, and that sanctions will be enforced against individuals engaging in sexual harassment and managers and supervisory personnel who knowingly allow such behavior to continue; and
- a statement that retaliation against individuals reporting sexual harassment or who testify or assist in any proceeding is unlawful.
- Meanwhile, the model sexual harassment prevention training must be interactive and include the following:
- an explanation of sexual harassment;
- examples of conduct that would constitute unlawful sexual harassment;
- information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims; and
- information concerning employees’ rights of redress and all available forums for adjudicating complaints.
2.Prohibition of Confidential Settlements
- Confidentiality language can only be included if that is the complainant’s preference. The complainant must be given a period of 21 days to consider whether to accept confidentiality language, and then has seven days to revoke his or her acceptance. This new law will bestow on employees broad bargaining power in choosing whether or not to keep sexual harassment claims private. This law takes effect on July 11, 2018.
- The new legislation amends New York’s Civil Practice Law and Rules to ban contractual provisions that mandate arbitration for any allegations or claims of sexual harassment, except where inconsistent with federal law. Any such provision included in a contract will be null and void, but will not impact the enforceability of any other provision in the contract. It is yet to be seen whether and to what extent this provision will be enforceable in light of the Federal Arbitration Act.
3. Other Measures.
- In addition to the above laws impacting private employers, the new budget law imposes an obligation that bidding entities for state contracts certify that they have implemented a written policy addressing sexual harassment and provide annual sexual harassment training to employees. Additionally, the law requires state employers found responsible for committing sexual harassment to reimburse the state agency or entity for any damages award paid to the plaintiff.
- Employers may now be held liable for sexual harassment contractors, subcontractors, vendors, consultants, or any other person providing services in the workplace, if the employer, its agents, or supervisors knew or should have known that the nonemployee was subject to sexual harassment in the employer’s workplace, and failed to take appropriate corrective action. This provision takes effect immediately.
4. Extension of Sexual Harassment Protections To Nonemployees.
5. Prohibition of Mandatory Arbitration Agreements
The bill prohibits settlement agreements for sexual harassment claims that include nondisclosure provisions, unless that is the complainant’s preference. Specifically, employers will not “have the authority” to include in a settlement agreement any terms or conditions that would “prevent the disclosure of the underlying facts and circumstances,” for a claim for which “the factual foundation… involves sexual harassment.”
The model training must also include information addressing conduct by supervisors and additional responsibilities for supervisory personnel.
Pay Equity – “Equal Pay” claims have been reborn.
- The 9th Circuit Court of Appeals ruled on April 9 that employers cannot justify a wage differential between men and women by relying on prior salary, which makes it more difficult for employers to justify pay differentials and defend pay equity claims.
- Massachusetts – Last Month, the Massachusetts Attorney General issued guidance regarding the amended Massachusetts Equal Pay Act (MEPA), which is scheduled to take effect on July 1, 2018. That law will prohibit employers from paying employees of a different gender at different rates provided they are doing “comparable work,” and will also bar inquiries about salary
Laws Prohibiting Obtaining Past Pay History (examples).Many states have passed or are in the process of passing laws limiting or prohibiting obtaining or using past pay history at hire. As examples:
- California – Assembly Bill 168 (Eggman), prohibits public and private employers from seeking or relying upon the salary history of applicants for employment. AB 168 also requires an employer, upon reasonable request, to provide the pay scale information to an applicant applying for employment. Therefore, if an applicant inquires as to how much a specific position pays, the employer is required to provide the pay scale for that position.
- Delaware, Massachusetts, and Oregon passed similar laws.
- Philadelphia passed an ordinance which was challenged.
- New York City adopted an ordinance that will become law on October 31.
- A San Francisco ordinance will go into effect on July 1, 2018.
Attacking Nondisclosure Agreements – such agreements are under attack, especially when not associated with the resolution of a lawsuit out of a concern that these agreements have slowed disclosure and response to widespread issues.
- Section 13307 of the federal The Tax Cuts and Jobs Act provides that no deduction shall be allowed for “(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorneys’ fees related to such a settlement or payment.”
- Washington State Bill 5996 prohibits employers from requiring employees to sign, as a condition of employment, a nondisclosure agreement (NDA) preventing them from “disclosing sexual harassment or sexual assault occurring in the workplace, at work-related events coordinated by or through the employer, or between employees, or between an employer and an employee, off the employment premises.”
The law also specifies that such agreements—including nondisclosure agreements that predate the new law—will be void and unenforceable. The law does carve out an exception for confidentiality provisions contained in settlement agreements entered into between employers and employees
The bill also adds a new section to the Washington Law Against Discrimination (WLAD) that specifically prohibits employers from firing or retaliating against employees who disclose sexual harassment or sexual assault allegations.
Mandatory No Harassment Programs and Training.
One cannot discount the barrage of statistics … for various reasons, many employees have not felt comfortable raising harassment and discrimination concerns. Our complaint procedures have not worked as well as we believed, and many employers have not yet created a culture where employees will raise concerns about discrimination, harassment, safety.
One of my focuses is on making No Harassment and No Discrimination policies understandable and relevant to employees and supervisors. What meaningful guidance to we give employees when we recite a No Harassment policy drafted to satisfy legal concerns?
A few suggestions ….
- Review your No Harassment and No Discrimination Polices and Policy Statements.
- Revise them to include lots of examples and less legalese.
- Make your No Bullying policies more robust and because bullying and claims of hostile environment, discrimination and retaliation often flow from bullying – connect the No Harassment and No Discrimination policies to bullying.
- Train employees to focus on professionalism and to avoid getting to the point of harassment.
- Recognize that not every person can be taught good judgment, but to at least try. Common Sense left town – never assume that anyone innately acts with common sense.
- Figure out how to convince employees that you are serious that you want them to report “possible” harassment, discrimination, safety hazards and unethical behavior.
Our Hats are off to these organizations and their safety efforts ….
Georgia Tech and GTRI – the best!
- Georgia Tech Launches State’s First Professional Master’s Degree in Occupational Safety and Health
- Georgia Small Business Safety and Health Consultation Program
BevCap Management Best Practices Conference.
AGC-National Safety Committee meetings (outstanding).
EHS-Today Safety Leadership Conference (sponsored by FP, ABC and others) (11/6/18).
National Safety Council.
Colorado AGC Safety Council – especially proactive about silica.
TAUC Leadership Conference.
ABC Florida East Coast Chapter.
AGC San Diego Chapter.