Responding to the national “#MeToo” movement, Washington has enacted several new workplace laws primarily intended to protect victims of sexual harassment.
The first new law bars employers from requiring employees— as a condition of employment—to enter into agreements that would limit the employee’s ability to report sexual harassment or sexual assault.
The second new law bans employers from requiring employees to resolve workplace disputes (including sexual harassment claims) through mandatory, private dispute resolution, such as arbitration.
The third new law relates to the development of model anti-harassment policies by the Washington State Human Rights Commission.
Disclosure and Discussion of Sexual Harassment and Assault (S.B. 5996)
This new law encourages “the disclosure and discussion of sexual harassment and sexual assault in the workplace” (S.B. 5996). It takes effect on June 7, 2018. S.B. 5996 prohibits employers from requiring employees to “sign a nondisclosure agreement, waiver, or other document that prevents the employee from disclosing sexual harassment or sexual assault occurring in the workplace” as a condition of employment. Under this new law, employers may not prevent employees from publicly disclosing or discussing sexual harassment or sexual assault occurring:
- At work;
- At work-related events coordinated by or through the employer, or between employees; or
- Between an employer and an employee, away from the employment worksite.
Any restrictions, nondisclosure agreements, waivers, or other documents signed by an employee as a condition of employment that prevent the above violate public policy and are void and unenforceable. Importantly, this law does not prohibit employees and employer from entering into a settlement agreement to resolve claims of sexual harassment, and such agreements may include confidentiality provisions.
Law Barring Mandatory Private Dispute Resolution (S.B. 6313)
This new law is aimed at “preserving an employee’s right to file a complaint or cause of action for sexual harassment or sexual assault” publicly (S.B. 6313). It will also take effect on June 7, 2018. This law provides that an employment contract or agreement is against public policy and is void and unenforceable if it requires employees to waive their rights to:
- Publicly pursue a cause of action under the Washington State Law Against Discrimination (WLAD);
- Pursue a cause of action under federal discrimination laws; or
- Publicly file a complaint with the appropriate state or federal agencies.
This law thus bars any agreement that requires an employee to resolve claims of discrimination in a confidential dispute resolution process.
Model Policies (S.B. 6471)
Finally, (S.B. 6471) relates to “developing model policies to create workplaces that are safe from sexual harassment.” This law will also take effect on June 7, 2018. The Washington legislature recognized that between 25 percent and 85 percent of women have experienced sexual harassment in the workplace. Therefore, this law is intended to encourage employers to adopt and implement policies that will ensure safer working environments for women—allowing them to report concerns of sexual harassment without fear of retaliation or loss of status or opportunities.
The law 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 the workplace free from sexual harassment. The Commission must post the model policies and best practices prominently on its website for the public to access by January 1, 2019. The new law further requires the Washington State Department of Labor and Industries to post the Commission’s model policies and best practices on its website for public access within 30 days of the Commission’s adoption.
The following groups must be represented in the work group:
- Representatives from the business community;
- Human resource professionals;
- Groups advocating for survivors of sexual harassment;
- Labor organizations;
- Representatives of farmworkers or groups advocating for farm workers;
- Representatives from agricultural industries; and
- Subject matter experts, as deemed necessary by the Commission.
The legislation includes many considerations the work group may review when developing best practices in the workplace, such as:
- How workplace leaders can signal their commitment to stopping sexual harassment;
- How to create and protect anonymous reporting channels to allow employees to raise concerns about workplace misconduct and to share ideas with leadership without worrying about being identified;
- How to ensure human resource departments are accountable for enforcing sexual harassment policies, aiding victims of sexual harassment, and encouraging victims to speak up;
- How to protect against retaliation for complainants and observers;
- The use of employee engagement surveys containing questions regarding sexual harassment prevention; or
- Requiring training for all employees in a classroom environment.
Coverage: Employers with employees in Washington.
Effective Date: June 7, 2018
Action Required: Employers should ensure that they have an anti-harassment, anti-discrimination, and anti-retaliation policy and procedure in place that complies with the above recommendations. Employers should train human resources and supervisory staff on the updated requirements. Employers should also consult with counsel and, if necessary, review and revise existing employment agreements or contracts containing nondisclosure clauses.
Employers should watch for additional updates regarding the model policies and best practices. The Washington State Human Rights Commission is anticipated to release these updates by January 1, 2019.
As always, please be sure to contact your HR Business Partner if you have any questions.