While much of the media's discussion of the #MeToo movement has focused on high profile industries like entertainment, media, and politics, a bill recently introduced in Congress is designed to ensure that most ordinary workers will benefit from imposing stricter anti-harassment protections.

Following a trend sparked by progressive state legislatures like California, on April 9, Sen. Patty Murphy (D-Wash.) introduced the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination (" Be HEARD") in the Workplace Act. The so-called "Be HEARD Act" aims to expand federal anti-harassment protections and assist employers in preventing workplace harassment. Recently, we wrote [ LINK] about a package of California workplace harassment reform bills that went into effect on January 1, 2019. These bills bear notable similarities to the goals and provisions of the "Be HEARD" Act. Provisions of the "Be HEARD" Act are discussed in detail below.

Prohibiting Mandatory Arbitration and Non-disclosure Agreements

Most notably, the "Be HEARD" Act prohibits employers from requiring workers to sign mandatory arbitration and non-disclosure agreements upon acceptance of employment. This "Be HEARD" provision is similar to California legislation that restricts confidentiality provisions concerning information related to sexual harassment. Under the proposed bill, employers would no longer be able to require employees to sign clauses promising that they will settle harassment and discrimination disputes through private arbitration. In addition, the bill also bans mandatory blanket non-disclosure and non-disparagement agreements in harassment, discrimination, and retaliation cases.

Expansion of Civil Rights Protections to All Workers

The "Be HEARD" Act also seeks to close perceived loopholes that leave many American workers unprotected under existing anti-discrimination laws. Currently, Title VII of the Civil Rights Act, a federal law which protects against discrimination and harassment in the workplace, only applies to businesses with more than 15 employees. "Be HEARD" will extend these protections to all employees regardless of business size. Further, before "Be HEARD" was introduced, damages in sexual harassment cases were limited by the size of the employer. "Be HEARD" will eliminate these damage caps.

In addition, "Be HEARD" extends its protection to individuals who are not "employees," such as independent contractors, volunteers, interns, fellows, and trainees. And, the bill includes language that provides protection to older workers and members of the LGBTQ community who face harassment on the job.

Lastly, "Be HEARD" clarifies and expands upon the definition of what behaviors constitute workplace harassment. By doing so, the bill's proponents aim to correct what they argue to be misinterpretations of anti-discrimination law. For example, under current law, an employee bringing a harassment claim against his or her direct supervisor has to meet a higher burden of proof if the supervisor cannot fire, demote, promote, or transfer the employee. The "Be HEARD" bill would make it easier for this employee to bring such a claim.

Education and Training for Both Employers and Employees on Workplace Harassment

Employees are not the only beneficiaries of this law. Similar to California's new SB 1343 (which expanded sexual harassment training requirements for employers with five or more employees), "Be HEARD" will provide employers with model policies, trainings, and surveys that will both reveal unreported harassment and assist employers in developing effective preventive practices. The proposed law also authorizes the United States Equal Opportunity Commission to create a new office with the power to enforce these harassment and nondiscrimination training requirements and educate workers about their rights and assist them with filing harassment complaints with the EEOC.

Elimination of the Tipped Wage

The "Be HEARD" Act also addresses what some believe is systemic harassment among tipped workers in the hospitality industry. The bill will eradicate tip credits (made illegal in California decades ago) to benefit workers in the hospitality and restaurant industry who often feel they have to ignore unwanted physical contact and comments to make a tip.

Employer Takeaways

The "Be HEARD" Act faces a long and bumpy road in Congress. Even if the bill fails to pass, it still provides a look into what may be coming if there is a change in the White House in 2020. While pundits predict that the bill faces a tough battle in a Republican-controlled Senate, there is support among some Republicans for banning mandatory arbitration clauses and nondisclosure agreements. Our firm will closely monitor the bill and provide an update when it becomes available.

If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700, or visit us online at www.brgslaw.com.

Sincerely,
Sahar Shiralian
Richard S. Rosenberg
Ballard Rosenberg Golper & Savitt, LLP