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Watching the 'Bandwagon Effect' for Mandatory Sexual Harassment Training

The #MeToo movement inspired progressive legislatures this year to revisit mandatory sexual harassment training programs statewide for nearly all workers and supervisors, part of the sweeping effort confronting power imbalances between men and women in the workplace.

The most comprehensive sexual harassment policies were passed in California and New York, two states that are often leaders on new initiatives in the employment law space. New York's state rules went into effect this month, and employers have until October 2019 to implement training programs. California bolstered its existing training requirement.

Very few states have mandatory sexual harassment training requirements. Delaware's new sexual harassment training law, signed in August, takes effect in January 2019. That law imposes training requirements on employers with at least 50 employees in the state, according to a Jackson Lewis P.C. analysis.

A handful of states this year, including Maryland and Louisiana, also bolstered or added sexual harassment training requirements for government employees, according to the National Conference of State Legislatures, which tracked the dozens of measures proposed and enacted this year aimed at tackling the issue.

Few states and local governments followed suit since California’s first training law was passed more than a decade ago, but employment attorneys say the newly passed measures could push momentum.

“Other states and jurisdictions will see the lead that California and New York have taken,” said Jason Habinsky, an employment partner at Haynes and Boone in New York. “There is sometimes a bandwagon effect.”

In many states, training is recommended but not required for the private sector. Maine has a requirement for companies with more than 15 supervisors. Connecticut is also among the states that requires training for employers with 50 or more employees. However, a proposal to expand that requirement to all employers with 15 or more employees failed to pass this year.

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In the 1990s, two U.S. Supreme Court decisions—Burlington Industries Inc. v. Ellerth and Faragher v. City of Boca Raton—provided employers an incentive to demonstrate they had taken appropriate steps to prevent harassment. Trainings are also often a staple in conciliation agreements and consent decrees that the U.S. Equal Employment Opportunity Commission and private attorneys negotiate to resolve lawsuits and agency cases.

But additional training on its own does little to move the needle for workplace culture improvements, according to EEOC research. A 2016 agency task force on sexual harassment found that while such training “cannot stand alone but rather must be part of a holistic effort.” The agency's report said accountability and leadership were key factors in stopping workplace harassment.

California lawmakers passed a law this year that bolsters the state's training requirement to include non-supervisory and seasonal workers. New York state and New York City adopted anti-sexual harassment policies that include mandatory training program for all employers.

“New York really has been very focused on implementing protection for the workplace,” Habinsky said. “You always hear about California being proactive and employer friendly. New York has now taken serious steps to focus on protecting employees in the workplace. There is rapid fire development in the law. Most recently it’s been in stride with the #MeToo movement.”

The New York policies that went into effect this month require a company to adopt a sexual harassment prevention policy and to distribute it in writing. The New York law also prohibits employers from requiring nondisclosure provisions to settle sexual harassment claims, except under certain conditions.

Randi Kochman, chair of the employment group at Cole Schotz in New Jersey, said companies in New York are scrambling to comply with the new regulations. She called it a "new day" for employers. "There will be a cost involved, however they choose to do it," Kochman said. "It's continuing the whole conversation and raising questions of these issues."

She said employers in New York are “stunned by the training requirement. They are deciding how to do it, whether to do it themselves and outside vendors to come and do it."

Kochman described New York's new mandatory training as "onerous" but added: “Just because it’s a burden doesn’t mean it’s a bad thing. Very few states do require it but it’s always been recommended and it’s definitely has the potential to provide a lot of benefits.”

Jeff Kohn, the managing partner of the O’Melveny & Myers office in New York, said the package of laws passed in New York require immediate attention from employers. Larger companies, he said, will be better able to adapt to the new annual requirements.

“While many changes will be easy to implement, employer policies, arbitration agreements and severance agreements have to be carefully and thoughtfully structured to avoid tripping over the new technical requirements of the law,” Kohn said.

Management-side lawyers said New York's policies could prove influential to other states, but not overnight. State legislatures, especially in recent years, have taken the lead on labor and employment issues in the absence of any substantive policy-making at the federal level.

California also passed new laws confronting sexual harassment in the wake of the #MeToo movement. The state already had required training for supervisors for more than a decade. The recently signed legislation "expanded the universe to near every employee in the state,” said Susan Groff, a Jackson Lewis principal in Los Angeles.

Other states will likely watch California and New York to see how it affects smaller employers, who are more likely to face compliance hurdles.

“Usually California is one of the thought leaders in employment law and now you have added pressure in the wake of the #MeToo movement,” Groff said. “I would not be surprised to see other states follow. They might take a wait and see how they progress in California and would not be shocked follow suit.”


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