Maryland Enacts the Disclosing Sexual Harassment in the Workplace Act of 2018
07/01/18
Author: ADP Admin/Monday, July 2, 2018/Categories: State Compliance Update, Maryland
On May 15, 2018, Maryland Governor Larry Hogan signed into law the Disclosing Sexual Harassment in the Workplace Act of 2018 (the “Act”), which prohibits contractual waivers of sexual harassment claims and imposes significant reporting requirements for certain Maryland employers as well.
Mandatory Arbitration Clauses Prohibited
The Act prohibits any provision in an employment agreement that waives a substantive or procedural right or remedy to future claims of sexual harassment and/or associated retaliation. The Act effectively prohibits mandatory arbitration clauses. However, it should be noted that this prohibition may be preempted by the Federal Arbitration Act, as interpreted by the U.S. Supreme Court in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). Further, the Act specifies that an employer cannot take an adverse employment action against an employee who fails or refuses to sign an agreement that includes a prohibited waiver; and an employer will be liable for attorney’s fees and costs if it attempts to enforce such an agreement.
Mandatory Reporting Requirements
The Act also requires employers with 50 or more employees to submit a survey electronically to the Maryland Commission on Civil Rights (the “Commission”) on or before July 1, 2020 and on or before July 1, 2022. The survey will include:
- The number of settlements made by or on behalf of the employer after an employee alleges sexual harassment;
- The number of times the employer has paid a settlement to resolve sexual harassment allegations against the same employee over the past 10 years of employment; and
- The number of settlements made after an allegation of sexual harassment that included a confidentiality provision.
The survey will include space for employers to report whether they took personnel action against employees who were the subject of a sexual harassment settlement. The section of the law requiring employer surveys will only remain effective until June 30, 2023.
The Commission will post on its website the aggregate number of responses from employers for each item listed above and will prepare an executive summary of randomly selected surveys with employer-identifying information redacted. Notably, any member of the public may request information regarding a particular employer. In response, the Commission will disclose the number of times that employer has paid a settlement to resolve sexual harassment allegations against the same employee over the previous 10 years.
Coverage: Employers with employees in Maryland.
Effective: October 1, 2018
Action Required: Employers in Maryland should:
- Become familiar with the new obligations under the law.
- Review and revise existing employment agreements and contracts to confirm that they do not contain impermissible waivers of substantive and/or procedural rights or remedies to future sexual harassment and/or associated retaliation claims, including an impermissible arbitration provision.
- Review and revise existing settlement practices, particularly with respect to settlement of sexual harassment claims and inclusion of nondisclosure provisions.
- Address how to track settlements to ensure accurate reporting.
As always, please be sure to contact your HR Business Partner if you have any questions.
Disclaimer: This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice.
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