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Employment Law Alert – Maryland’s Disclosing Sexual Harassment in the Workplace Act of 2018: Is Your Business Prepared?

June 12, 2018

MARYLAND’S DISCLOSING SEXUAL HARASSMENT IN THE WORKPLACE ACT OF 2018: IS YOUR BUSINESS PREPARED?

On May 15, 2018, Governor Hogan signed into law the Disclosing Sexual Harassment in the Workplace Act of 2018.  The Act, which will go into effect on October 1, 2018, imposes new waiver and disclosure requirements regarding sexual harassment on Maryland employers.

HOW DOES IT AFFECT YOUR BUSINESS?

First, under the Act, all Maryland employers – regardless of size – will be prohibited from including any provision that waives any substantive or procedural right or remedy to a future claim of sexual harassment or retaliation for reporting sexual harassment in any employment agreement, contract or policy.  The Act provides that such waivers are void as a matter of public policy, and further prohibits retaliation based upon an employee’s failure to enter into an agreement containing a prohibited waiver.  Employees will be entitled to attorneys’ fees and costs when defending against an employer’s attempts to enforce a prohibited contract or policy.

Second, Maryland employers with 50 or more employees – whether in or outside the state of Maryland – will be required to respond to surveys by the Maryland Commission on Civil Rights (MCCR) regarding sexual harassment claims in the workplace.  To comply with this requirement, covered employers must submit the following information:

  1. the number of settlements made after an allegation of sexual harassment;
  2. the number of times the employer paid to settle a sexual harassment claim against the same employee over a ten year period; and
  3. the number of sexual harassment settlements containing a confidentiality provision. 

That information must be submitted on or before July 1, 2020, and again on or before July 1, 2022.  The Act does not specify the applicable time period which the survey will cover, so stay tuned for additional information on this front.

On its website, the MCCR will post the aggregate number of settlements reported by employers.  Moreover, the MCCR will be required to publish or make accessible to the public the information contained in the survey responses.

HOW CAN YOU PREPARE?

In preparation for the Act’s implementation, employers should review their employment agreements to ensure they do not contain a prohibited waiver of rights or remedies regarding claims of sexual harassment or retaliation.  Any prohibited waiver requirements should be eliminated prior to October 1, 2018.  Maryland employers with 50 or more employees should begin to prepare for the surveys by reviewing and gathering information on past sexual harassment claims and settlements, along with developing a reliable system to maintain records of future settlements.

If you have any questions regarding the requirements of the Act or the steps that you need to take to comply, please do not hesitate to ask us for help.