On March 21, 2018, Washington Governor Jay Inslee signed bill SB 5996 (the “Law”), which prohibits employers from requiring as a condition of employment that employees sign a nondisclosure agreement preventing them from discussing workplace sexual harassment or sexual assault. The Law goes into effect on June 7, 2018.

In addition to sexual offenses in the workplace, the Law covers such incidents that occur 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 new Law also prevents employers from retaliating against employees who disclose workplace sexual harassment or sexual assault.

Notably, however, the Law does not prohibit an employer from including confidentiality provisions in a settlement agreement with an employee regarding sexual harassment allegations. Further, the Law provides exceptions for human resources, supervisory, and managerial staff who are expected to maintain confidentiality as part of their jobs. It also excludes employees who participate in an “open and ongoing” sexual harassment investigation and are requested to maintain confidentiality during that investigation.

Under the Law, “sexual harassment” is defined broadly to mean unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact, or other verbal or physical conduct or communication of a sexual nature if submission to that conduct or communication is, among other things, used as a factor in decisions affecting that individual’s employment or creates a hostile environment. “Sexual assault” is similarly defined as any type of sexual contact or behavior that occurs without the explicit consent of the recipient.

Employers in other states should be aware that the kind of nondisclosure agreements banned by the new Washington law also may be unlawful under federal labor laws protecting concerted activity (i.e., with at least one other employee) for the employees’ mutual aid or protection.

State Commission to Develop Model Policies and Best Practices

Also on March 21, 2018, Governor Inslee signed bill SB 6471, which directs the Washington State Human Rights Commission to create a “work group” to develop model policies and best practices for employers and employees to keep workplaces safe from sexual harassment. The bill requires the agency to adopt the model policies and best practices developed by the work group and to post them on the agency’s website by January 1, 2019.

On November 2, 2017, three Republican Representatives, Mimi Walters (R-CA), Elise Stefanik (R-NY), and Cathy McMorris Rodgers (R-WA), introduced a federal paid leave bill that would give employers the option of providing their employees a minimum number of paid leave hours per year and instituting a flexible workplace arrangement. The bill would amend the Employee Retirement Income Security Act (“ERISA”) and use the statute’s existing pre-emption mechanism to offer employers a safe harbor from the hodgepodge of state and local paid sick leave laws. Currently eight states and more than 30 local jurisdictions have passed paid sick leave laws.

The minimum amount of paid leave employers would be required to provide depends on the employer’s size and employee’s tenure. The bill does not address whether an employer’s size is determined by its entire workforce or the number of employees in a given location.

Number of Employees Amount Of Sick Leave For Employees With Five Or More Years Of Service Amount Of Sick Leave For Employees With Fewer Than Five Years Of Service
1,000 or more

 

20 days 16 days
250 to 999

 

18 days 14 days
50 to 249

 

15 days 13 days
Fewer than 50

 

14 days 12 days

In addition to paid leave hours, employers would be required to offer at least one of the following flexible workplace arrangements: (1) a compressed work schedule that allows employees to increase their daily hours so as to qualify for a four-day workweek, (2) a biweekly work program that permits employees to work a total of 80 hours over a two-week period, (3) a telecommuting program, (4) a job-sharing program, (5) flexible scheduling, or (6) a predictable schedule. Employees would become eligible to participate in a flexible workplace arrangement once they have worked for the employer for 12 months and at least 1,000 hours.

The bill would not affect state paid family leave insurance programs, such as one about to take effect in New York, nor would it affect job-protection coverage afforded by the Family and Medical Leave Act. If signed into law, the bill would become the first ever federal paid leave law.

Our colleagues Brian W. Steinbach and Judah L. Rosenblatt, at Epstein Becker Green, have a post on the Heath Employment and Labor blog that will be of interest to many of our readers in the retail industry: “Mayor Signs District of Columbia Ban on Most Employment Credit Inquiries.”

Following is an excerpt:

On February 15, 2017, Mayor Muriel Bowser signed the “Fair Credit in Employment Amendment Act of 2016” (“Act”) (D.C. Act A21-0673) previously passed by the D.C. Council. The Act amends the Human Rights Act of 1977 to add “credit information” as a trait protected from discrimination and makes it a discriminatory practice for most employers to directly or indirectly require, request, suggest, or cause an employee (prospective or current) to submit credit information, or use, accept, refer to, or inquire into an employee’s credit information. …

Read the full post here.

Our colleagues Judah L. Rosenblatt, Jeffrey H. Ruzal, and Susan Gross Sholinsky, at Epstein Becker Green, have a post on the Hospitality Labor and Employment Law Blog that will be of interest to many of our readers in the retail industry: “Where Federal Expectations Are Low Governor Cuomo Introduces Employee Protective Mandates in New York.”

Following is an excerpt:

Earlier this week New York Governor Andrew D. Cuomo (D) signed two executive orders and announced a series of legislative proposals specifically aimed at eliminating the wage gap in gender, among other workers and strengthening equal pay protection in New York State. The Governor’s actions are seen by many as an alternative to employer-focused federal policies anticipated once President-elect Donald J. Trump (R) takes office. …

According to the Governor’s Press Release, the Governor will seek to amend State law to hold the top 10 members of out-of-state limited liability companies (“LLC”) personally financially liable for unsatisfied judgments for unpaid wages. This law already exists with respect to in-state and out-of-state corporations, as well as in-state LLCs. The Governor is also seeking to empower the Labor Commissioner to pursue judgments against the top 10 owners of any corporations or domestic or foreign LLCs for wage liabilities on behalf of workers with unpaid wage claims. …

Read the full post here.

In the wake of several high-profile wins for the LGBT community, the U.S. Equal Employment Opportunity Commission (“EEOC”) added employment discrimination protection to the list.  On July 16, 2015, the EEOC ruled that discrimination against employees based on sexual orientation is prohibited by Title VII of the 1964 Civil Rights Act of 1964 (“Title VII”) as discrimination based on sex.

The EEOC held that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”  The EEOC noted that sex-based considerations also encompassed gender-based considerations under Title VII. This ruling, if accepted by federal courts, would extend protection under Title VII to decisions made on the basis of sexual orientation. While only the Supreme Court can issue a final, definitive ruling on the interpretation of Title VII, EEOC decisions are given significant deference by federal courts.

Employers across the U.S. should anticipate that overt actions, practices, and harassment that could be construed as discriminatory on the basis of a worker’s sexual orientation will be challenged in federal court and subject employers to potential liability.