November 14, 2018

November 13, 2018

Subscribe to Latest Legal News and Analysis

November 12, 2018

Subscribe to Latest Legal News and Analysis

Vermont Enacts Sweeping Sexual Harassment Prevention Law

On May 30, 2018, Vermont Governor Phil Scott signed bill H.707, titled “An Act Relating to the Prevention of Sexual Harassment” (the “Act”). Effect on July 1, 2018, the Act provides expansive protections for employees and prospective employees, as well as some groundbreaking employer obligations and potential penalties for violations of the law.

Among its key provisions, the Act:

  • Applies to all persons “hired to perform work or services,” thereby covering independent contractors and unpaid interns;
  • Prohibits employers from requiring any employee or prospective employee, as a condition of employment, to sign an agreement that waives “a substantive or procedural right or remedy available to the employee with respect to a claim of sexual harassment.” In effect, this provision bans employment agreements requiring that sexual harassment claims be resolved through arbitration;[1]
  • Prohibits employment agreements that prevent or restrict an employee or prospective employee from “opposing, disclosing, reporting, or participating in an investigation of sexual harassment;”
  • Requires that all sexual harassment settlement agreements contain specific statements (discussed below) describing when a claimant-party has the right to disclose information about his or her allegations and the settlement;
  • Mandates that a sexual harassment settlement agreement may not prohibit the claimant-party from working for the employer “or any parent company, subsidiary, division, or affiliate of the employer;”
  • Directs the development of a public education and outreach program, including the establishment of a hotline and web portal for the reporting of sexual harassment complaints to the Vermont Human Rights Commission or the Attorney General’s Office;
  • Requires the Attorney General’s Office to develop a streamlined reporting system;
  • Provides the Attorney General broad powers to investigate and enforce the law, including, among other things, the authority to conduct an inspection of an employer’s records, and in certain circumstances (described below), require the employer to conduct employee training; and,
  • Directs the Office of Legislative Affairs to develop “mechanisms” for essentially voiding non-disclosure agreements in prior settlements where, in a separate, later claim, the alleged harasser is “adjudicated by a court or tribunal of competent jurisdiction to have engaged in sexual harassment or retaliation in relation to a claim of sexual harassment.”

Further, consistent with existing law, which mandates that employers must adopt an anti-harassment policy, the new Act reiterates that employers:

  • Must provide all new hires with a copy of their written policies on sexual harassment, and again distribute copies to all employees if the policies are revised; and
  • Are encouraged, but not required, to provide sexual harassment prevention training to all employees as well as supervisors and managers.

Inclusion of Required Statement in Sexual Harassment Settlements

As noted above, the Act imposes limits on the extent to which a sexual harassment settlement agreement can require confidentiality. Under the new law, employers must expressly state in such settlement agreements that the agreement does not prohibit or restrict the claimant from:

  • Testifying, assisting, or participating in an investigation of a sexual harassment claim conducted by any state or federal agency:
  • Complying with a discovery request or testifying in a proceeding concerning a claim of sexual harassment; and
  • Exercising “any right” the claimant has under 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.”

The statement also must make clear that the claimant “does not waive any rights or claims that may arise after the date the settlement agreement is executed.”

The State’s Powers to Audit Employers and Enforce the Law

As stated above, the Act grants the Attorney General broad authority to conduct inspections and collect data. Specifically, the Act authorizes the Attorney General’s Office, on 48 hours’ notice to the employer, to “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.” This authority includes the right to examine all documents related to sexual harassment claims, including the number and details of such complaints and their resolution.

If, after inspection, the Attorney General’s Office or the Human Rights Commission determines that action is “necessary to ensure the employer’s workplace is free from sexual harassment,” either office can, among other remedies, order the employer to provide annual sexual harassment education and training for up to three years.

Finally, the previously described directive to the Office of Legislative Affairs to explore “mechanisms” which would allow the Attorney General to void non-disclosure agreements in prior settlements after a subsequent finding of sexual harassment in a separate case would be a significant development in this area of the law should it actually be developed and implemented.

______________

[1] Arguably, mandatory arbitration of sexual harassment claims already was banned in Vermont under another law, which bars arbitration agreements that prevent a person from “seeking or obtaining the assistance of the courts in enforcing his or her constitutional or civil rights.” It should be noted that this arbitration ban, along with others, such as the one recently enacted in New York, may be preempted by the Federal Arbitration Act. With the increase in these kinds of laws, it is likely that, at some point, there will be a court challenge to at least one of them on preemption grounds.

This post was written with assistance from Alison Gabay, a 2018 Summer Associate at Epstein Becker Green.

©2018 Epstein Becker & Green, P.C. All rights reserved.

TRENDING LEGAL ANALYSIS


About this Author

Jeffrey M. Landes, Epstein Becker Green, Employment Litigator, New York Lawyer
Member

JEFFREY M. LANDES is a Member of the Firm in the Labor and Employment practice, in the firm's New York office.

Mr. Landes' experience includes:

  • Counseling clients in a variety of industries—including financial services, retail and communications—in all facets of employment law, including compliance with EEO laws and other statutes governing the workplace, independent contractor issues, executive terminations, restrictive covenants, drug testing, background checks, employee discipline and...

212-351-4601
Susan Gross Sholinsky, Labor Employment Attorney, Epstein Becker Green Law Firm
Member of the Firm

SUSAN GROSS SHOLINSKY is a Member of the Firm in the Labor and Employment practice, in the New York office of Epstein Becker Green. She counsels clients on a variety of matters, in a practical and straightforward manner, with an eye toward reducing the possibility of employment-related claims. In 2013, Ms. Sholinsky was named to theNew York Metro Rising Stars list in the area of Employment & Labor.

212-351-4789
Nancy Gunzenhauser, Labor Employment Attorney, Epstein Becker Law Firm
Associate

NANCY L. GUNZENHAUSER is an Associate in the Labor and Employment practice, in the New York office of Epstein Becker Green.

Ms. Gunzenhauser:

  • Counsels clients on compliance with EEO laws, the Americans with Disabilities Act, the Family and Medical Leave Act, worker classification issues, and other federal, state, and local statutes governing the workplace
  • Advises employers in all facets of the employment relationship, from pre-employment considerations and hiring to terminations and post...
212-351-3758