On May 15, 2018, Governor Hogan signed into law the “Disclosing Sexual Harassment in the Workplace Act of 2018” (the “Act”). The Act will go into effect on October 1, 2018, and it contains two requirements for Maryland employers.
First, regardless of size, Maryland employers will be prohibited from including in an employment agreement, contract, or policy, 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 addition, the Act prohibits employers from taking adverse action against an employee because the employee refuses to enter into an agreement containing such a waiver.
Second, Maryland employers with 50 or more employees, whether in or outside the state of Maryland, will be required to submit answers to bi-annual surveys conducted by the Maryland Commission on Civil Rights (“MCCR”). The surveys will ask: (1) the number of monetary settlements made by or on behalf of the employer after an employee’s allegation of sexual harassment; (2) the number of times the employer paid a settlement to resolve a sexual harassment allegation against the same employee over the past ten years of employment, and (3) settlements made after an allegation of sexual harassment that included a confidentiality provision. It is unclear if the survey includes current and former employees and settlements outside of Maryland. The first survey must be submitted on or before July 1, 2020 and the second survey must be submitted on or before July 1, 2022. These will be the only submissions required and this portion of the Act will be repealed as of June 30, 2023.
The MCCR will be required to publish or make accessible to the public the information contained in the survey. Specifically, the MCCR’s website the aggregate number of survey responses from employers and will retain, for public inspection upon request, the response from a specific employer regarding the number of settlements included in item 2 above. The Act does not specify whether or not the alleged harasser’s identity will be disclosed.
To prepare for the Act taking effect, employers should (1) review their employment agreements to ensure the documents do not contain a waiver of rights or remedies regarding claims of sexual harassment or retaliation, (2) revise current policies on sexual harassment as needed, and (3) conduct sexual harassment training for all employees. In addition, Maryland employers with 50 or more employees should begin preparing for the surveys by reviewing and gathering information on sexual harassment claims and settlements and by maintaining records of future settlements.
If you have any questions or concerns on how this law may impact your business practices or have any other questions, please contact your labor and employment counsel at Smith, Gambrell & Russell, LLP.