ANNAPOLIS - In the wake of enhanced focus across the nation on sexual harassment, Maryland has enacted legislation requiring employers to submit information to the state regarding settlements of sexual harassment claims.
And, while any business employing people in Maryland should take note of the new rules, Jay Fries, an attorney at Ford & Harrison LLP, told the Cook County Record he "would not be surprised at all to see 'copycat' legislation in other more liberal jurisdictions," such as Illinois.
"The Maryland legislation has 'sunset' provisions, but the information gathered through these surveys and the report that the (Maryland Commission on Civil Rights) issues could generate follow-up legislation after 2023," Fries said.
Jay Fries
| Ford Harrison
Fries, whose practice centers on employment and labor law, including discrimination claims, said the new Maryland law requires an employer with 50 or more employees to electronically file a “survey” with the commission.
Fries said the law has three subparts. First, the survey must state the number of settlements entered into involving sexual harassment allegations by an employee.
Second, the law requires a reporting of the number of times the employer has paid a settlement to resolve a sexual harassment allegation involving the same alleged harasser over the last 10 years.
The third disclosure requirement is the number of sexual harassment settlements entered that contain confidentiality provisions.
“The surveys must be filed on or before July 1, 2020, and again on or before July 1, 2022,” Fries said. “This reporting requirement ‘sunsets’ or expires, on June 30, 2023.”
According to Fries, “the interest of the Maryland legislature is to protect Maryland citizens, so arguably only settlements of claims arising in Maryland need to be reported.”
However, Fries said, if the harasser was involved in prior claims outside of Maryland that resulted in a settlement payment and was subsequently accused of harassing an employee in Maryland, resulting in a settlement payment, the provisions of the second subpart would probably apply.
Fries said the definition of “employer” in the bill does not contain an exception for state or local government.
The law also directs the commission to post on its website all of the data received from employers.
Fries raised concerns about the fact that some of the information would be publicly available.
“More troubling, however, is a provision in the statute allowing public inspection of the responses from specific employers in regard to the number of times that employer paid a settlement to resolve sexual harassment claims involving the same harasser,” he said. “The commission will also review ‘a random selection’ of survey responses and prepare an executive summary for the governor and the legislature.”
Fries said the new statute also provides that any provision in an employment agreement or policy that waives any “substantive or procedural right or remedy” as to claims of sexual harassment or retaliation for reporting that harassment would be void.
“This provision would basically outlaw agreements requiring employees to arbitrate harassment claims or to waive the right to a jury trial in harassment cases,” Fries said. “This part of the statute is not subject to the 2023 sunset provision.”
Fries said the commission will issue guidance for employers when it creates the actual survey form.
“Nonetheless, Maryland employers and out-of-state employers with 50 or more employees in Maryland should start preparing now to collect the information necessary to respond to this mandated survey,” Fries said.