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Congress Bans Forced Arbitration/Waivers of Sexual Harassment and Assault Claims
On Feb. 10, 2022, the U.S. Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the Act). The U.S. House of Representatives had previously passed the Act, which is now expected to be signed by President Biden. Once signed, the Act will go into effect immediately.
Ending Forced Arbitration Act
The Act would essentially prohibit employers from requiring employees to resolve claims of workplace sexual harassment or assault through arbitration or other alternatives to court litigation or waive them in advance.
Specifically, under the new law, an employer may not enforce a pre-dispute arbitration agreement or pre-dispute joint-action waiver against a person who files a case alleging sexual harassment or sexual assault in a federal, state or tribal court. An individual making a claim of sexual harassment or assault may choose to participate in arbitration or other litigation alternatives but may not be required to do so.
Covered Disputes
Whether the new law applies to a particular dispute will be determined under federal law and that determination will be made by a court, not an arbitrator. The Act will apply to any dispute or claim arising after the date the law is enacted.
The law applies specifically to cases involving sexual harassment and assault. It does not apply to sex discrimination or other types of harassment or assault. Therefore, it does not prohibit employers from using mandatory arbitration agreements or waivers in other employment-related claims or lawsuits.
The new law would make all pre-dispute arbitration and waiver agreements for workplace sexual harassment and sexual assault claims unenforceable.
Department of Labor Increases Civil Penalty Amounts for 2022
The Department of Labor (DOL) has released its 2022 inflation-adjusted civil monetary penalties that may be assessed on employers for violations of a wide range of federal laws effective January 15, 2022, including:
To maintain their deterrent effect, the DOL is required to adjust these penalties for inflation, no later than Jan. 15 of each year. Key penalty increases include the following:
The maximum penalty for violations of the poster requirement under the FMLA increases from $178 to $189 per offense.
Action Steps
Employers should become familiar with the new penalty amounts and review their pay practices, benefit plan administration and safety protocols to ensure compliance with federal requirements.
Nothing to report...
February
2/1 – Deadline for posting OSHA Form 300A
2/28 – Forms 1094-B, 1095-B, 1094-C, and 1095-C Filing Deadline (paper filers)
March
3/31 – Forms 1094-B, 1095-B, 1094-C, and 1095-C Filing Deadline (electronic filers)
April
4/12 – 2021 EEO-1 Component 1 Data Collection Opening
4/30 – Remove your OSHA Form 300A
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