United States: #MeToo Inspires Legislative Changes Across The United States

Seyfarth Synopsis: In response to the #MeToo movement, several states have passed legislation aimed at combatting workplace sexual harassment. These legislative measures range from banning non-disclosure provisions and mandatory, pre-dispute arbitration agreements, to requiring employers to provide anti-harassment training and distribute anti-harassment policies and information. Multi-jurisdictional private employers, especially those with employees in California, Connecticut, Delaware, Maine, Maryland, New Jersey, New York, Tennessee, Vermont, and Washington State should be aware of these laws, as they have significant implications for the workplace.

It has been well over a year since #MeToo went viral. In response, several states ushered in sweeping legislative changes in 2018. Generally, these anti-harassment laws appear to be motived by two overarching goals: (1) increasing awareness about inappropriate workplace conduct and (2) ending what many have criticized to be a culture of silence surrounding workplace harassment. In furtherance of these goals, states have taken various approaches to these laws. For instance, some legislators have enacted laws that ban and/or void, under certain circumstances, non-disclosure agreements, mandatory pre-dispute arbitration agreements, and no re-hire provisions insofar as these provisions relate to harassment claims. Other legislators have enacted laws requiring employers to provide anti-harassment training, display posters, and distribute policies and information sheets, while at least one other state has imposed reporting obligations on employers with respect to harassment settlements. As such, while the below provides a brief overview of the new laws, this is not intended to give detailed guidance and private sector employers impacted by these laws should take further steps to ensure they are in compliance.

Non-Disclosure Agreements

State legislatures in California, New Jersey, New York, Tennessee, Vermont, and Washington State have adopted various approaches for curtailing the use of non-disclosure agreements. A high level overview of the laws in these states is set out below.

California - Effective January 1, 20191 California passed three laws that, depending on the type of contract at issue, affect the use of non-disclosure provisions.

SB 820 affects agreements settling lawsuits or administrative complaints, and voids contractual provisions that would prevent a party from disclosing "factual information" related to a claim filed in that proceeding if the information is "regarding" sexual assault, sexual harassment, workplace harassment or discrimination based on sex, failure to prevent discrimination or harassment based on sex in the workplace, or retaliation for reporting discrimination or harassment based on sex in the workplace. However, if the claimant requests confidentiality, the parties may agree to prevent the disclosure of "all facts" that would lead to the discovery of the claimant's identity. Irrespective of preference, the "amount paid" to resolve any complaint may still be kept confidential.

AB 3109 affects all contracts and voids provisions that prevent a party from testifying about alleged criminal conduct or sexual harassment when the party has been compelled or requested to do so by lawful process.

SB 1300 affects agreements for raises, bonuses, or new or continued employment, making it an unlawful employment practice to require an employee "to sign a nondisparagement agreement or other document that denies the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment."

For a more detailed analysis of these new California laws, see Seyfarth's blog post here.

New Jersey - Effective March 18, 2019 New Jersey's S.B. 121, provides that a "provision in any employment contract or settlement agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment" is against public policy and will be unenforceable against a current or former employee who is a party to the settlement or contract. The law permits an employee to enforce a non-disclosure provision in a settlement agreement against the employer, unless the employee "publicly reveals sufficient details of the claim so that the employer is reasonably identifiable." For a more thorough discussion of this New Jersey law, see Seyfarth's prior alerts here and here. Notably, New Jersey's law is significantly broader than other states' laws as it affects all claims of discrimination, retaliation or harassment — not just sexual harassment.

New York - Effective July 11, 2018 In New York, employers may not include non-disclosure provisions in settlement agreements resolving claims of sexual harassment, unless confidentiality is requested by the complainant. It is still permissible, however, to include a non-disclosure provision that prohibits disclosure of the settlement amount. If the complainant requests confidentiality, the terms of the confidentiality provision must first be provided to all parties in one, standalone agreement. The complainant then has 21 days to consider the terms (this consideration period cannot be waived or shortened), after which the confidentiality provision must be memorialized in the settlement agreement. The complainant then has 7 days to revoke the settlement agreement.

Tennessee - Effective May 15, 2018 Tennessee's law provides that an employer shall not require an employee or prospective employee to execute or renew a non-disclosure agreement with respect to sexual harassment in the workplace as a condition of employment. This law does not affect settlement agreements.

Vermont - Effective July 1, 2018 Vermont enacted H. 707, prohibiting employers from requiring any employee or prospective employee, as a condition of employment, to sign an agreement or waiver that prohibits, prevents, or restricts the employee or prospective employee from opposing, disclosing, reporting, or participating in an investigation of sexual harassment. Additionally, the law requires that certain language be included in agreements to settle a sexual harassment claim.

Washington State - Effective June 7, 2018 Washington State passed S.B. 5996, which prohibits employers from requiring employees to "sign a nondisclosure agreement, waiver, or other document that prevents the employee from disclosing sexual harassment or sexual assault occurring in the workplace" as a condition of employment. Any such restriction is void and unenforceable. The law does not prohibit confidentiality provisions in settlement agreements.

Mandatory, Pre-Dispute Arbitration Provisions & Waivers of Other Substantive and Procedural Rights

Maryland, New Jersey, New York, Vermont, and Washington State have passed legislation that prohibits employers from requiring employees to waive certain substantive and procedural rights and remedies as a condition of employment. These prohibited waivers generally include mandatory, pre-dispute arbitration agreements, class action waivers, and jury trial waivers. While these laws are likely preempted by the Federal Arbitration Act, as discussed in more detail here, employers should be aware of them.

Maryland's Disclosing Sexual Harassment in the Workplace Act, effective October 1, 2018 (and set to expire absent legislative action on June 30, 2023) provides that "any provision in an employment contract, policy, or agreement" that waives any "substantive or procedural right or remedy to a claim that accrues in the future of sexual harassment or retaliation for reporting or asserting a right or remedy based on sexual harassment" is null and void. Additionally, employers who attempt to enforce such a provision will be liable for the employee's reasonable attorneys' fees and costs.

New Jersey's S.B. 121 makes provisions in employment contracts unenforceable that "waive[] any substantive or procedural right or remedy" relating to a claim of discrimination, retaliation, or harassment. The legislation also creates a private right of action for employees who claim to be aggrieved by such a provision, and entitles a successful plaintiff to attorneys' fees and costs.

New York's legislation prohibits employers from including in contracts with employees provisions that mandate pre-dispute arbitration of claims of sexual harassment. The law also declares null and void clauses in existing contracts that mandate arbitration of sexual harassment claims.

Vermont's legislation prohibits employers from requiring any employee or prospective employee, as a condition of employment, to sign an agreement or waiver that "purports to waive a substantive or procedural right or remedy available to the employee with respect to a claim of sexual harassment." Any such provision will be void and unenforceable.

Washington State's law, SS B 6313, provides that a provision of an employment agreement is void and unenforceable "if it requires an employee to waive the employee's right to publicly pursue a cause of action arising under [Washington State Human Rights laws] or federal antidiscrimination laws or to publicly file a complaint with the appropriate state or federal agencies, or if it requires an employee to resolve claims of discrimination in a dispute resolution process that is confidential." Notably, and similar to New Jersey, this law applies to all claims of discrimination, not just sexual harassment.

No-Rehire Provisions

So far, Vermont is the only state that has enacted legislation prohibiting employers from inserting no re-hire provisions in settlement agreements resolving claims of sexual harassment.


California, Connecticut,2 and Maine have required training for some time, but both California and Maine updated their training laws in 2018. New York State, New York City, and Delaware passed new legislation in 2018.

California While California has required certain employers to conduct interactive anti-sexual harassment training since 2005, in 2018, California passed S.B. 1343, and significantly amended its training requirements. Now, employers with 5 or more employees are required to provide at least 2 hours of interactive sexual harassment prevention training to all supervisory employees and at least 1 hour of such training to all non-supervisory employees, by January 1, 2020. Training must be provided once every 2 years thereafter.

Delaware In August 2018, H.B. 360 was passed, and it went into effect on January 1, 2019. Pursuant to the law, Delaware employers with 50 or more employees must provide interactive sexual harassment training to all employees. New employees must receive training within one year of hire, and current employees must receive training by January 1, 2020. Training must be repeated every two years.

Maine Since 1991, Maine has required that employers with 15 or more employees provide anti-sexual harassment training to new employees within 1 year of hire. In 2018, Maine updated its law to require employers use a checklist prepared by the Maine Department of Labor to develop their sexual harassment training programs. The checklist is a 1-page narrative defining sexual harassment and summarizing the substantive topics that each training must cover.

New York State and New York City Pursuant to Labor Law Section 201-g, all employers in New York State must provide annual, interactive sexual harassment prevention training to all employees. Employers have until October 8, 2019 to complete the first year of training. The State has prescribed certain minimum substantive requirements that each training must meet.

In May 2018, New York City amended its Administrative Code to require all employers with 15 or more employees provide annual, interactive, anti-sexual harassment training to all employees. New York City also requires training for independent contractors who have performed work in furtherance of the business for more than 90 days and more than 80 hours in a calendar year. New York City's law takes effect on April 1, 2019. For more detail about the New York State and City legislation, please refer to our prior alerts here and here.

Written Notice and Policy Requirements

In addition to imposing training requirements, lawmakers in Delaware, New York State, and New York City have also passed legislation requiring that employers distribute to employees a sexual harassment information sheet or policy, or display a sexual harassment poster in the workplace.

As of January 1, 2019, Delaware employers must distribute a sexual harassment notice to new employees at the commencement of employment and to current employees by July 1, 2019.

Effective October 9, 2018, pursuant to Labor Law Section 201-G, all New York State employers must provide employees with a sexual harassment prevention policy and a complaint form. The State has prescribed minimum standards for the policy, and published a model policy and complaint form on its website.

As of September 6, 2018, all New York City employers must conspicuously post a sexual harassment prevention poster (in English and Spanish) in employee common areas and distribute to new employees a sexual harassment prevention information sheet (in English or Spanish, depending on the employees preference).

Other states, including California, Maine, Massachusetts, and Vermont, already had some sort of written notice requirement in place. California employers have been required to provide employees with a discrimination, harassment, and retaliation policy. This is in addition to the distribution of the Department of Fair Employment and Housing's brochure on sexual harassment. Maine requires all employers to post a sexual harassment poster and provide annual, written notice to employees. Massachusetts requires employers with 6 or more employees to adopt a written policy against sexual harassment (the State's model policy is available here). Vermont requires all employers to display a poster and distribute a policy against sexual harassment (Vermont has published a model policy).

Reporting Obligations & Expanded Government Oversight

Maryland's recently-enacted Disclosing Sexual Harassment in the Workplace Act requires employers with 50 or more employees to submit a survey to the Maryland Commission on Human Rights on or before July 1, 2020 and again on or before July 1, 2022. The survey must report: (1) the number of settlements made after an allegation of sexual harassment; (2) the number of times the employer paid settlements in reference to sexual harassment claims made against the same employee over the last 10 years; and (3) the number of sexual harassment settlements that contained non-disclosure provisions. The Commission will publish the aggregate results of the surveys on its website and submit an executive summary to the Governor.

Vermont's new law authorizes the Vermont Attorney General to enter and inspect any place of business or employment, question any person who is authorized by the employer to receive or investigate complaints of sexual harassment, and examine an employer's records, policies, procedures, and training materials related to the prevention of sexual harassment. The Attorney General, as a result of his investigation, may require the employer to provide annual training to all employees and/or to conduct an annual, anonymous working-climate survey.

Employer Takeaway

Employers with employees in any of these jurisdictions should be aware of these new laws and ensure that they are in full compliance. Seyfarth attorneys are available to advise employers on any aspect of these laws.


1 Unless otherwise noted, effective dates are applicable to each state's laws throughout the alert.

2 Since 1993, Connecticut has required that employers with 50 or more employees provide supervisors with a 2-hour training at the commencement of employment and thereafter recommends that such training be updated every 3 years.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions