#MeToo Moves to Local Legislature

It's not just for Twitter anymore—many states, including Nebraska, have adopted legislation to address the national phenomenon. What’s worth bringing to your business?

October 5, 2018, marked one year since the Harvey Weinstein scandal broke. Countless stories have been shared, resulting in a marked increase in awareness of sexual harassment and discrimination in the workplace. Some 32 states introduced #MeToo inspired bills for the 2017-2018 legislative session, with a majority of those focused on making changes to the legislative workplace. Twelve states—Arizona, California, Delaware, Illinois, Louisiana, Maryland, Nebraska, New York, Oregon, Tennessee, Washington State, and Vermont—went further, instituting new rules for both private workplaces and public employers beyond state legislatures.[1] Though none of the tri-state area’s legislatures have passed new guidelines applicable to all employers in their state, for Nebraska, South Dakota and Iowa employers, it pays to be proactive.

The Nebraska Unicameral amended its workplace harassment policy for the first time in 26 years on September 7, 2018. Under the amended policy, training on the subject of workplace harassment will be offered every two years, and the names of senators and staff who undergo the training will be published in the Legislative Journal.[2] The amendment also recognized the influence and impact of social media on workplace harassment, bringing the policy current with 21st-century reality. Nebraska also updated its sexual harassment reporting procedures for state employees via amendments to LB791, which was signed into law on April 23, 2018.[3] Iowa introduced a bill relating to claims arising from state employees committing sexual harassment in the workplace (IA HF2044), but it died when the legislature adjourned on May 5, 2018. South Dakota has not yet initiated any legislation in response to the #MeToo movement.

A majority of states have introduced at least some sort of legislation relating to sexual harassment and discrimination in the last 18 months. For an overview of the states’ efforts, see https://www.billtrack50.com/blog/social-issues/civil-rights/metoo-times-up-and-the-legislation-behind-the-movement/. What can employers take from those efforts in order to create a safer, healthier environment, even before state action mandates it? Here are 3 considerations taken from the bills themselves:

1. Ixnay on the NDA. A common tactic regarding sexual harassment has been to require a complaining employee to sign a nondisclosure agreement (NDA) as part of any settlement. This prevents the employee from talking about his or her experience. The settlement version of a gag order, NDAs force an employee to make a difficult decision: share the company’s infraction with the public or receive compensation for their pain and suffering. Where the culture of a company is truly toxic or the public should be made aware of certain behavior (think entities providing public services or those that are publicly traded), the individual who suffered the harassment may feel victimized again by having to remain quiet. Federal action has already made it impossible to claim a tax deduction on settlement payments arising from agreements which include a NDA[4]. States like Kansas and Indiana are taking steps to make NDAs related to #MeToo behavior void as against public policy. Consider whether inclusion of a NDA provision in your harassment policy is really sending the right message to your employees.

2. Train openly, train often. Michigan put forth a bill to modify education, curriculum and instruction in sex education to include sexual harassment and sexual violence. One of the most important steps any employer can take in creating a healthy workplace environment is training its employees on a regular basis. And not just the “put in a tape and call it good” trainings of days gone by—current trends include alternative methods like bystander intervention and civility training. By reminding your employees to report improper behavior they witness and going back to the Golden Rule basics of treating coworkers with respect, these methods remove the stigma and awkwardness from sexual harassment training.

3. Consider keeping it anonymous. Many large companies already utilize outside reporting services that provide an anonymous hotline for harassment complaints, and a new Texas law requires private colleges to allow the more discrete reporting approach. Allowing employees to report to a third-party, disinterested person or automated system may increase the likelihood of a report where the harasser is in a supervisory position. Anonymity may also encourage early reporting—if an individual will not be singled out for reporting, they may feel more inclined to report even minor improprieties, as opposed to waiting until he or she just can’t stand it anymore. Your Employer Practices Liability Insurance carrier may also provide this service. Don’t have an EPLI policy? It may be worth looking into!

With more and more states taking a hands-on approach to combatting the problems raised by the #MeToo movement, employers should consider a proactive approach to getting their workplaces in line. Taking steps now to improve your company’s culture will boost your employees’ morale and lower the chances of an incident down the line. For help reviewing your handbook or to discuss a training session with one or more of our employment law attorneys, contact Goosmann Law Firm today.

[1] https://news.bloomberglaw.com/daily-labor-report/states-take-up-metoo-mantle-in-year-after-weinstein

[2] https://www.omaha.com/news/legislature/nebraska-legislature-updates-harassment-policy-will-publish-names-of-those/article_b43ef822-39a0-5501-b7d5-a165c995e620.html

[3] https://nebraskalegislature.gov/FloorDocs/105/PDF/Intro/LB791.pdf

[4] Internal Revenue Code Section 162(q) now expressly prevents business expense deductions for: 1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment.