As the 2017-2018 legislative session came to a close, Vermont lawmakers enacted new laws that address gender-free restrooms, crime victim protections and anti-sexual harassment measures. All three laws go into effect on July 1, 2018.
Specifically, Vermont enacted a law requiring any single-user toilet in any public building or place of public accommodation be identified as gender-free. Further, the legislature made two significant amendments to Vermont’s Fair Employment Practices Act (the “Act”). First, “crime victim status” has been added to the list of protected classes and employers are required to provide an employee who is a crime victim with unpaid leave to attend certain legal proceedings. And, secondly, legislators amended the Act to further expand requirements ensuring a workplace free from sexual harassment. The amendments prohibit employment agreements from preventing an employee from disclosing sexual harassment. Likewise, the Act now prevents employers from requiring employees or applicants to waive their ability to oppose, disclose, report or participate in an investigation of sexual harassment. Finally, the amendment updates policy distribution requirements and encourages, but does not mandate, anti-harassment training.
Gender-Free Restroom (H.B. 333)
Under H.B. 333 any single-user restroom in a public building or place of public accommodation must be made available for use by persons of any gender and designated for use by not more than one occupant at a time, or for family or assisted use. The single-user restroom may be identified by a sign, provided the sign marks the restroom as a restroom and does not indicate a specific gender.
A single-user restroom means a single-occupancy restroom with at least one water closet and an outer door that can be locked by the occupant. In other words, the new law does not apply to bathrooms with more than one toilet stall.
Protections for Crime Victims (H.B. 711)
H.B. 711, signed on May 28, 2018, adds crime victims to the list of protected classes in the Act, making retaliation and discrimination against these individuals unlawful. The amendment also requires employers to provide an employee who is a crime victim with unpaid leave to attend related legal proceedings.
Anti-Discrimination and Retaliations Provisions:
The statute defines “crime victim” as any of the following:
- A person who has obtained relief from an abuse order under state domestic relations abuse prevention law;
- A person who has obtained an order against stalking or sexual assault;
- A person who has obtained an order against abuse of a vulnerable adult;
- (i) A victim as defined in 13 V.S.A. § 5301, provided that the victim is identified as a crime victim in an affidavit filed by a law enforcement official with a prosecuting attorney of competent state or federal jurisdiction; and (ii) shall include the victim’s child, foster child, parent, spouse, stepchild or ward of the victim who lives with the victim, or a parent of the victim’s spouse, provided that the individual is not identified in the affidavit as the defendant.
Leave and Job Protection:
In addition, H.B. 711 carves out circumstances upon which “crime victims” are allowed to take unpaid leave from employment. These circumstances include allowing the employee to attend:
- A deposition or other court proceeding relating to a criminal proceeding where the employee is a “victim” and the employee has a right or obligation to appear at the proceeding;
- A relief from abuse hearing when the employee seeks relief as the plaintiff;
- A hearing concerning an order against stalking or sexual assault when the employee seeks relief as the plaintiff; or
- A hearing seeking relief from abuse, neglect, or exploitation when the employee seeks relief as the plaintiff.
H.B. 711 allows the employee to use accrued sick, vacation, or any other accrued paid leave in lieu of taking unpaid leave. Further, the amendment states that employment benefits for the duration of the leave must be provided to the employee at the same level of coverage that would be provided if the employee were continuing employment.
Upon returning from the leave, H.B. 711 mandates that the employee maintain the same job with the same level of compensation, benefits, and all other terms and conditions of employment.
Anti-Sexual Harassment Measures (H.B. 707)
Policies and Training:
The Act also requires employers to ensure a workplace free from sexual harassment. It already required all employers to adopt a policy against sexual harassment and provide it to all new employees upon their hiring, in addition to posting a copy of the policy in the workplace. H.B. 707 requires that if an employer makes any changes to its sexual harassment policy, it must provide the new policy to all employees in written form. It also requires the Vermont Commissioner of Labor to update the state’s model sexual harassment policy and workplace poster by September 15, 2018. Finally, H.B. 707 encourages, but does not mandate, annual anti-harassment training for all employees.
Non-Disclosure/Waiver Provisions:
H.B. 707 prohibits employers from requiring an employee or prospective employee to sign an agreement or waiver that:
- Prohibits, prevents, or otherwise restricts the employee or prospective employee from opposing, disclosing, reporting, or participating in an investigation of sexual harassment; or
- Waives any substantive or procedural rights or remedies available to the employee with respect to a sexual harassment claim.
H.B. 707 further provides that any agreement to settle a sexual harassment claim must expressly state the agreement does not prohibit, prevent, or otherwise restrict the individual who made the claim from doing any of the following:
- Lodging a complaint of sexual harassment committed by any person with any other state or federal agency;
- Testifying, assisting, or participating in any manner with an investigation related to a claim of sexual harassment conducted by a state or federal agency;
- Complying with a valid request for discovery in relation to civil litigation or testifying in a hearing or trial related to a claim of sexual harassment; or
- Exercising any right the individual may have pursuant to state or federal labor relations laws to engage in concerted activities with other employees for the purposes of collective bargaining or mutual aid and protection.
Additional Enforcement Provisions:
H.B. 707 also adds significant enforcement provisions. Specifically, the state Attorney General or his or her designee may enter and inspect any place of business, question any person who is authorized by the employer to receive or investigate complaints of sexual harassment, and examine an employer’s records, policies, procedures, and training materials related to the prevention of sexual harassment.
As a result of the inquiry, the Attorney General may require the employer, for a period of up to three years, to provide an annual education and training program to all employees or to conduct an annual, anonymous working-climate survey, or both.
Coverage: Employers with employees in Vermont.
Effective: July 1, 2018.
Action Required: To comply with this flurry of new laws, employers should:
- Review and revise, if necessary, single-stall bathroom practices and signage to ensure compliance with H.B. 333.
- Employers should ensure that they have written anti-harassment, anti-discrimination and anti-retaliation policies and procedures in place that comply with H.B. 707 and 711, and that such policies are redistributed in written form when amended.
- Employers should also consult with counsel and, if necessary, review and revise existing employment agreements, contracts and settlement agreements to ensure compliance with H.B. 707.
As always, please be sure to contact your HR Business Partner if you have any questions.
Produced in partnership with Jackson Lewis, P.C.
Disclaimer: This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice.