Sexual Harassment and Sexual Assault Arbitration Barred by Law. What Should Employers Do Now?

A new law signed by President Biden brings significant changes to employers’ ability to require arbitration of certain disputes with employees and could lead to an increase in sexual assault and sexual harassment claims against employers in court.  On March 3, 2022, President Biden signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (the “Act”).  The Act amends the Federal Arbitration Act (“FAA”) to provide that pre-dispute arbitration agreements and pre-dispute joint-action waivers relating to sexual assault and sexual harassment disputes are unenforceable at the election of the person or class representative alleging the conduct.  The Act took effect immediately upon signing.
 
Further, it prevents employers from requiring that employees waive their rights to pursue workplace sexual assault and harassment claims as class actions. Accordingly, the Act removes significant barriers that employees may face to pursuing claims of workplace sexual harassment or assault in court.

• Learn what is included in the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the Act). 
• Learn why this law was proposed and what it does to victims of sexual assault and sexual harassment.
• What do Employers have to do to stay compliant with the new law
• What policy changes need to be made?
• What is the definition of arbitration agreements when it comes to sexual harassment?
• Learn how sexual harassment training is impacted by the law.
• Learn what the key factors are when developing any employee contract involving waivers to the law.
• Learn how employees impacted have more leverage when Employers create agreements
• Learn what types of claims are exempt from the law
• Learn which states have similar regulations and how far do they go
• Learn how the court cases will handle these claims in litigation.
• Learn what should be added to the Employee Handbook and standalone policies.

The new Act restricts the enforcement of pre-dispute arbitration agreements and pre-dispute joint-action waivers over “sexual assault disputes” and “sexual harassment disputes.”  A “sexual assault dispute” is defined as a “dispute involving a nonconsensual sexual act or sexual contact… including when the victim lacks the capacity to consent.”  A “sexual harassment dispute” is a “dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.”  The Act does not expressly cover retaliation claims.  If parties disagree as to whether the new law covers a particular dispute, the law provides that the determination is one for a federal court and not an arbitrator, regardless of whether an arbitration agreement delegates such determination to an arbitrator.

• All Employers
• Business Owners
• Company Leadership
• Compliance professionals
• HR Professionals
• Managers/Supervisors
• Employers in all industries

Margie Faulk is a senior level human resources professional with over 15 years of HR management and compliance experience. A current Compliance Advisor for HR Compliance Solutions, LLC, Margie, has worked as an HR Compliance advisor for major corporations and small businesses in the small, large, private, public and Non-profit sectors.  Margie has provided small to large businesses with risk management strategies that protect companies and reduces potential workplace fines and penalties from violation of employment regulations. Margie is bilingual (Spanish) fluent and Bi-cultural.

Margie’s area of expertise includes Criminal Background Screening Policies and auditing, I-9 document correction and storage compliance, Immigration compliance, employee handbook development, policy development, sexual harassment investigations/certified training, SOX regulations, payroll compliance, compliance consulting, monitoring US-based federal, state and local regulations, employee relations issues, internal investigations, HR management, compliance consulting, internal/external audits, and performance management.
Margie is a speaker and accomplished trainer and has created and presented compliance seminars/webinars for over 16 US and International compliance institutes. Margie has testified as a compliance subject matter expert (SME) for several regulatory agencies and against regulatory agencies, thank goodness not on the same day. Margie offers compliance training to HR professionals, business owners, and leadership to ensure compliance with workplace and regulations. 
Margie’s unique training philosophy includes providing free customized tools for all attendees. These tools are customized and have been proven to be part an effective risk management strategy. Some of the customized tools include the I-9 Self Audit. Correction and Storage program, Ban the Box Decision Matrix Policy that Employers can provide in a dispute for allegations, Family Medical Leave Act (FMLA) Compliance Guide, Drug-Free Workplace Volatile Termination E-Book and other compliance program tools when attendees register and attend Margie’s trainings.
Margie holds professional human resources certification (PHR) from the HR Certification Institution (HRCI) and SHRM-CP certification from the Society for Human Resources Management. Margie is a member of the Society of Corporate Compliance & Ethics (SCCE).