KemLaw

The #MeToo movement is spurring a closer look at and legislative action on the use of confidential agreements in sexual harassment cases.

The Congress last year added language to the tax overhaul bill that prohibits individuals who have settled harassment cases from deducting those settlements as a business expense on their private tax returns.

What’s more, 16 states considered legislation in 2018 to limit the use of non-disclosure agreements by private employers in these cases. The states of Arizona, Maryland, New York, Tennessee, Vermont and Washington recently signed such legislation into law.

California has just done so as well. Last week the legislature there sent two bills to the Governor on this topic. One bans employers from requiring nondisclosure agreements related to sexual misconduct as a condition of getting or keeping a job. The other bans settlements in sexual harassment or discrimination cases that seek to keep the circumstances secret.

New York passed a law earlier in 2018 that prohibits confidentiality unless the victim of the sexual harassment event requests it.

Arizona approved legislation that allows women to testify in court or speak to police even if they did sign a confidentiality agreement.

The new Vermont law prohibits employers from requiring employees to sign an agreement as a condition of employment that states the employee will not even report sexual harassment.

Are employment contracts that require confidentiality in these cases actually enforceable?

A number of legal experts have their doubts.

Will these new laws effectively protect women in the workplace?

Or will they simply reduce the incentive for employers to settle these cases – increasing the risks and the costs for victims of abuse?

Only time will tell.

And what about Connecticut?

A piece of legislation called the “Time’s Up” Act was passed by the State Senate earlier in 2018 but died in the State House. The bill was an attempt to update Connecticut’s sexual harassment and sexual assault laws to create stronger protections for victims while increasing penalties for offenders by reforming the complaint processes, strengthening and expanding Connecticut’s mandated reporter laws and eliminating statutes of limitation for all Class B and C felonies.

Connecticut employers can expect to see more state legislative action on this matter in 2019.

If you are an employer in Connecticut and need guidance on the topic of sexual harassment, contact the attorneys at Kainen, Escalera & McHale. We do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region. What’s more, each of our attorneys has over 20 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy. Please contact us if we can help you.

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