In this episode of the Employee Survival Guide®, Mark discusses the March 3, 2022 federal nationwide ban on forced arbitration in sexual harassment and sexual assault cases in employment. Previously employers covered up sexual harassment cases behind confidential arbitration proceedings; the public never had a chance to discover the bad actors and their twisted view of reality. This marks a turning point in every employee's ability to control employer's behavior when they confront sexual harassment in the workplace. Mark walks you through several important tips he uses in handling sexual harassment claims in the wake of this new federal law. If you do not listen to this episode, you could be leaving a substantial amount of money on the settlement table and worse, you could let your employer get away with sexual harassment. It's your call.
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Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you what your employer does not want you to know about and a lot more. Today we'll be talking about the topic of how to manage sexual harassment cases after the federal ban on forced arbitration. On February 14 2022, we reported the Congress passed legislation banning forced arbitration in sexual harassment and sexual assault cases in employment. On March 3 2022, President Biden signed into law the federal ban on forced arbitration of all sexual harassment and sexual assault cases occurring at work. The law has a retroactive effect, meaning that it bans any and all prior employment agreements that force employees into private confidential arbitration, the law did not affect sex and gender discrimination claims. However, according to the speeches made by the White House prior to the signing of the bill into law, President Biden has made it clear that his administration will take effect efforts to enforce arbitration for all employees across all protected classes of employees, including but not limited to race, sex, religion, sexual orientation, age, disability, national origin and pregnancy discrimination. The new law amends the Federal Arbitration Act and makes arbitration of voluntary choice by the employee. Here's five facts you need to know about. Number one, you must have a sexual harassment claim until a federal government bans forced arbitration regarding all forms of employment discrimination. As expressly stated in the above speeches, only sexual harassment claims are covered under the new law, although similar gender claims are not sexual harassment claims. According to the US Equal Employment Opportunity Commission, sexual harassment is defined as follows. It is unlawful to harass a person because of the person sex. Harassment can include sexual harassment or unwelcome sexual advances, requests for sexual favors and other verbal and physical harassment of a sexual nature. Harassment does not have to be of a sexual nature. However, it can include offensive remarks about a person's sex, both victim and the harasser can be either a woman or man and the victim in harasser can be the same sex. Although the law does not prohibit simple teasing offhand comments or isolated incidents that are not very serious. Harassment is illegal when it is so frequent and so severe that it creates a hostile or offensive work environment. And when it results in an adverse employment decision, such as a victim being fired or demoted. The harasser can be the victim supervisor, a supervisor, another area a coworker, or someone who's not even an employee of the company. Number two, don't let your employer fool you about your rights. Over the years I've seen many employers attempt to manipulate employees about their rights and the employers obligations under state and federal law. All employees need to check their employers Human Resource Portal and implement manual regarding arbitration. The employer may not have updated the company policies and still seeks to enforce the outdated policy getting formed, enforce your employer to follow the law regarding the ban on arbitration and sexual harassment and sexual assault cases. Number three, your new leverage and how to use it to get what you want. Forced to confidentiality V arbitration was a method used by most employers previously, they buried sexual harassment claims from the public view. When employers required employees to file arbitration claim there was no public dissemination of the bad actors sexual harassment practices. Today, Congress and the President have removed this troublesome implement practice. The new law shifts control over to employees and marks the start of a new era in managing sexual harassment cases. Employees now have enormous leverage over employers to force a settlement to their benefit. Employers do not like publicity about sexual harassment cases. In the wake of the me to movement, employees must threatened litigation. For example, the threat of filing a lawsuit instead of federal court, we routinely draft sexual harassment complaints and send them to the employers council for purposes of promoting settlement negotiations. The removal of a forced arbitration practice has now force many employers to settle out of court with sexual harassment victims because they cannot mandate employees into private confidential arbitration proceedings. This new employee leverage must be viewed and on a continuum, as not all sexual harassment cases are like on the left side of the spectrum, you know the borderline sexual harassment cases where the employees liability is questionable or less than fit 250. Employers may usually defend these cases and refuse to settle in the middle or the more serious cases that cast a negative light on the employers reputation. On the extreme right side of the continuum. We see top level executives and even C suite executives being accused of gross sexual harassment. Employers have no choice but to settle these cases, the middle and the right side or risk of publicity nightmare and an SEC investigation. For example, Activision Blizzard. Number four, filing administrative complaints. If you have a sexual harassment claim, you're required to exhaust your administrative remedies by filing a complaint with the EEOC and the relevant state agency. The EEOC now has a new online comp complaint filing portal. The filing of the claim stops the clock on the 300 day look back period, which is essential imitations, a period where adverse employment actions have occurred. Number five settlement tips. If you've reached the stage of the settlement negotiations with your employer, here are a few important tips to help you finalize a settlement under new state laws. In the wake of the metoo movement, several states including New York, California, Illinois, New Jersey and Oregon, have passed laws banning force confidentiality, and not only sexual harassment cases but also employment discrimination cases. For example, New York statute five dash 336 bans confidentiality agreements also called non disclosure agreements and settlement agreements of all employment discrimination claims unless the employee request employee requests such an agreement. This is a huge break from past practices of covering up bad actor sexual harassment cases and now makes them public. In the past employers required confidentiality as a condition of the settlement. Today, employees who are presented with confidentiality agreements as a condition of settlement must object in writing to the employer and their counsel stating that they do not require nor prefer a separate confidentiality agreement. Employers will attempt to place part of a settlement money as a consideration for the confidentiality agreement. Employees must object to this illegal use of the settlement money to force them to accept the prohibited confidentiality agreement. Do not expect the employer and then their attorneys to roll over and play fair. If you encountered further resistance, you may want to send an email to the relevant attorneys general for your state copy opposing counsel. The AGs office is aware of the practice and may get involved to force the employers adherence to the statutory requirements. If you need more information about the end of forced arbitration and implement the screening cases, please contact Carey & Associates PC on the web. Thank you have a great week.