Vermont: New Sexual Harassment Prevention Law Imparts Greater Employee Protections, Employer Penalties

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All Employers with VT Employees

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July 1, 2018

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Signed on May 30, 2018, the “Act Relating to the Prevention of Sexual Harassment” (the “Act”) went into effect on July 1, 2018.  The Act, in response to public outcry through the #MeToo movement, implements expansive protections for employees, independent contractors, and interns, creates new employer obligations, and greatly strengthens the state agency’s ability to enforce sexual harassment prevention remedies.

Key provisions of the Act include the following:

  • Prohibits employers from requiring any worker or prospective worker to sign an agreement requiring sexual harassment claims to be arbitrated as a condition of employment;
  • Prohibits employment agreements that prevent/restrict a worker from opposing, disclosing, reporting, or participating in an investigation of sexual harassment;
  • Requires sexual harassment settlement agreements to contain specific statements indicating when a claimant-party may disclose information about the allegations or the settlement, and prohibits such agreements from prohibiting the claimant-party from working for the employer or its related entities;
  • Establishes a sexual harassment reporting hotline and web portal, requires the Attorney General’s office to develop a streamlined reporting system, and provides the Attorney General broad powers to investigate and enforce the new law;
  • Allows the Attorney General to enter and inspect an employer’s place of business and records on 48 hours’ notice, and may also order the employer to provide annual training on sexual harassment prevention, among other remedies; and
  • Will eventually permit voiding non-disclosure agreements in prior settlements where a separate, later claim determines an alleged harasser has engaged in sexual harassment or retaliated in relation to a sexual harassment claim.

The Act also emphasizes Vermont employers’ responsibility to provide workers with a written copy of the sexual harassment policy upon hire and whenever the policy is revised.  Although not required, the Act encourages employers to provide sexual harassment prevention training to employees as well as supervisors and managers.

Action Items

  1. Review employment agreements, including arbitration agreements, with legal counsel for compliance with the Act.
  2. Implement annual sexual harassment prevention training for all employees.
  3. Have a written sexual harassment policy prepared and distributed upon hire to employees and whenever updated.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Vermont: Adds “Crime Victims” to Protected Classes, New Unpaid Leave

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July 1, 2018

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Effective July 1, 2018, HB 711 adds “crime victims” to the Vermont Fair Employment Practices Act’s list of protected classes.  This addition prohibits retaliation and discrimination against crime victims, and also requires employers to provide an unpaid leave of absence to employees who need to attend legal proceedings related to this class.

“Crime victim” refers to individuals who are victims of domestic relations abuse, stalking, sexual assault, or abuse of a vulnerable adult under specified Vermont statutes.  The definition also includes the crime victim’s child, foster child, parent, spouse, stepchild or ward who lives with the victim, or parent of the victim’s spouse, provided these individuals are not identified as a defendant.

Employers must permit such crime victims unpaid leave to allow the employee to attend:

  • A deposition or other court proceeding related to a criminal proceeding where the employee is a victim, and has a right or obligation to appear;
  • A relief from abuse hearing when the employee seeks relief as the plaintiff;
  • A hearing concerning an order against stalking or sexual assault when the employee seeks relief as the plaintiff; or
  • A hearing seeking relief from abuse, neglect, or exploitation when the employee seeks relief as the plaintiff.

Employees may use accrued benefit time (such as vacation, paid time off, or sick leave) in lieu of part or all unpaid leave.  Employers are also required to maintain the same level of benefits coverage for the employee for the duration of the leave.  Upon return from leave, the employee must maintain the same job with the same level of compensation, benefits, and other terms and conditions of employment, with few exceptions.

Action Items

  1. Have handbook and policy documents revised to address the new protected category and unpaid crime victims leave.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Seattle, WA: Seattle’s Paid Sick and Safe Rules Revised Again

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All Employers with Seattle, WA Employees

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July 1, 2018

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Seattle’s local paid sick leave ordinance has undergone yet another round of changes.  When Washington passed a statewide paid sick and safe time (“PSST”) requirement last year, Seattle’s ordinance was amended to more closely align with state provisions.  Now, an additional revision to the Administrative Rules governing PSST incorporates a few more important changes and deletions, with a new effective date of July 1, 2018.  The below table contains select key revised or expunged rules:

Provision Previous Updated
Joint Employer Standard When employees are sourced through a staffing agency, the staffing agency generally must meet PSST requirements, unless an agreement stating otherwise is in place. Joint employers are responsible for compliance with the amended ordinance.
Calculating Pay Rate Set forth normal hourly rate calculation in tandem with state regulations. Revises part of a previous OLS proposal to include holiday pay, tips, and premium rates when calculating normal hourly compensation.  Eliminates lost commissions from normal hourly compensation rate for exempt employees.
Occasional Employees Employees typically based outside Seattle, who perform occasional work in Seattle totaling more than 240 hours in a calendar year, are covered under the ordinance. Defines “typically based outside” Seattle to mean an employee who must work outside the city for more than 50% of work hours in a year.  Additionally, employees are covered for every hour worked in Seattle if they are regularly scheduled to work in Seattle, even if scheduled infrequently or on a limited basis.
Accrual for Out-of-City Work Work performed outside of Seattle is not covered under the law for accrual and usage purposes. Eliminated from revised rules.
Incremental Usage PSST must typically be taken either in one-hour increments or the smallest increment the employer’s normal timekeeping permits, whichever is smaller.  Variance from this standard may be granted by the Department of Labor and Industries (“DOLI”). The revised rules do not permit a variance issued by the DOLI for work performed in Seattle.
Leave Usage for Voluntary Scheduling Employers may, but are not required to, permit PSST use during on-call or overtime hours employees elected to add to their schedule. Employers are required to pay, and permit PSST use, for an hour that the employee is “scheduled to have worked.”
Verification of Documentation Employers are prohibited from requiring documentation or verification of PSST use that unduly burdens, causes unreasonable expense, or exceeds privacy/verification requirements set by law.

 

Employers may also seek documentation or verification for PSST of fewer than four consecutive days for clear instances or patterns of abuse.

 A new framework is provided for employees to challenge employer’s request for verification or documentation of PSST use.  Employers must split the cost of specific out-of-pocket medical expenses if the employee is not provided health insurance through the employer.

 

Rule regarding employer’s ability to seek documentation in instances or patterns of abuse has been eliminated.
Posting Requirement Employers must display a notice provided by the Office of Labor Standards (“OLS”). The notice must meet the OLS’s specific requirements on size dimensions.  The posting must be displayed, or provided individually if display is not possible, no later than when employment begins or within 30 days of an employee becoming covered during employment.
Leave Advancement Employers may advance or “loan” leave time to employees prior to accrual. Employers are required to provide written or electronic notice that the advanced amount at least equaled what the ordinance requires an employee to accrue by the end of the time period the advance was intended to cover.
Disciplinary Measures Anti-retaliation protections do not prevent the employer from disciplining an employee where there is a clear instance or pattern of abuse. Eliminated from revised rules.

The above amendments are primarily intended to incorporate state requirements.  However, employers should still carefully review the revised rules and the potential impact on their operations.

Action Items

  1. Review the text of the Administrative Rules here.
  2. Have PSST policies updated to reflect amended rules.
  3. Review payroll procedures to ensure PSST rates are appropriately calculated.
  4. Review OLS poster requirements for compliance.
  5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Wisconsin: Disabled Employees Must Prove an Employer’s Knowledge or Intent to Discriminate

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All Employers with WI Employees

EFFECTIVE

June 26, 2018

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In Wisconsin Bell, Inc. v. Labor and Industry Review Commission and Charles Carlson (Carlson), the Wisconsin Supreme Court stated that employees who claim disability discrimination must prove discriminatory intent or that the employer knew the employee’s misconduct or poor performance was caused by a disability.

There, Carlson suffered from bipolar I disorder and was disciplined for customer mistreatment and avoiding his job duties. While awaiting final discipline, he presented doctor letters regarding his disability. After a final warning was issued, Carlson again avoided his job duties and claimed he needed to leave work for illness, but did not specify his disorder. His computer activity during this time suggested he was not actually ill. Again, while awaiting final discipline, he presented doctor’s letters regarding his disability. Ultimately, Carlson was terminated for policy violations.

The Wisconsin Supreme Court stated that the employee must show that the employer’s decision at the time was based on its knowledge of a causal connection between the employee’s misconduct and the disability. The court stated that the doctor’s letters presented by Carlson did not notify the employer of a connection between his disability and his behavior at work, and therefore the discipline was not unlawful.

Action Items

  1. Employers are recommended to carefully review information submitted by employees who claim poor performance based on a disability.
  2. Employers are recommended to have legal counsel review proposed discipline against a disabled employee before implementation to ensure compliance with state and federal anti-discrimination laws.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

July Updates

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Varies

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Varies

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This Short List addresses the following topics:
  1. California: Janitorial Employers Must Register with Labor Commissioner
  2. New Hampshire Adds Gender Identity as a Protected Category
  3. North Carolina Increases Hiring Opportunities for Individuals with a Criminal History
  4. Texas: 5th Circuit Requires Employer Signature on Mutual Arbitration Agreements
  5. Vermont Issues New Guidance on Marijuana in the Workplace
  6. Washington, D.C. Approves Increased Minimum Wage for Tipped Workers
  7. Washington Governor Fights SCOTUS Arbitration Class Action Waiver Ruling

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