In the wake of the Harvey Weinstein scandal and subsequent explosion of media coverage on sexual harassment in various workplaces, Maryland's legislature has chosen to respond with new legislation. Effective October 1, 2018, the state's new sexual harassment law precludes employers from limiting any procedural or substantive rights of employees to file claims for sexual harassment or retaliation for reporting harassment in the workplace.
Though many states have taken up the revision of sexual harassment laws in response to the #MeToo movement, Maryland appears to be one of the first to actually pass legislation on the matter. The new law certainly moved quickly through the Maryland state legislature this session. Introduced in February 2018, it passed by the Senate and House in early April and was signed by Governor Larry Hogan just this past week on May 15.
What the law entails
Dubbed the "Disclosing Sexual Harassment in the Workplace Act of 2018," the new law mandates new requirements for employers in the drafting, review and extension of employment contracts. Contracts may no longer include waivers of employees' procedural or substantive rights to file claims for sexual harassment or retaliation for reporting sexual harassment.
The law also applies to any employment contracts currently in existence. As of October, any such clauses that waive employees' rights to file or disclose future sexual harassment claims will be null and void. So, while past settled claims cannot be reopened, any new claims for harassment will not be subject to any provisions in existing contracts that waive employees' due process rights.
In effect, this means that contract terms like nondisclosure agreements, waivers of jury trial or mandatory arbitration clauses no longer apply to instances of sexual harassment. Employees may refuse to sign contracts including such provisions, and the new law specifically prohibits employer retaliation for refusal to sign such contracts. If employers take adverse action against an employee who chooses to exercise these rights, the employer will be held liable for the employee's legal fees.
Additional requirements for larger companies
Moreover, employers with more than 50 employees are now required to participate in a survey regulated by the Maryland Commission on Civil Rights. Questions on the survey ask about:
- The number of sexual harassment claims the company has settled
- The number of claims an employer has settled with any particular employee within the last 10 years
- How many of these settlements included confidentiality provisions
The Commission will then publish survey results for the public to read. Individuals or journalists could also file a request for survey results under the Maryland Public Information Act.
What should employers do?
Employers have until October to review and potentially revise existing contracts that include impermissible waivers. Any new contracts drafted over the summer and into the future should also take the new law's requirements into account. Working with a skilled legal team can help ensure your business comes into compliance with this new law and stays that way.