Newsletter

The Dispatch

September 1996

In this issue:

• New State Law: Employers Must Have Written Harassment Policy
• Silence Agreements Are Not Golden

Advisory to our Massachusetts Business Clients

New State Law: Employers Must Have Written Harassment Policy

In August, Governor Weld signed legislation which substantially amends and revises Massachusetts law prohibiting sexual harassment in the workplace. This new law, chapter 151B, sec. 3A, takes effect on November 6, 1996 and applies to all employers with six or more employees. Key provisions require Massachusetts employers to adopt written policies and a compliance program by specified deadlines. Employers with 15 or more employees must be in compliance with the law on November 6th while smaller employers must comply by January l, 1997.

Sexual harassment includes sexual advances, requests for sexual favors, or other conduct when (a) submission is made a condition or basis for employment decisions or (b) the conduct creates an intimidating, hostile, humiliating, or sexually offensive work environment.

The new sexual harassment law heightens employer responsibilities for education and training of employees and supervisors and for comprehensive compliance with the underlying rule prohibiting sexual harassment. Specifically, employers should adopt and implement a compliance program which includes:

• a written policy against sexual harassment
• a written statement that sexual harassment in the workplace is unlawful
• a written statement that retaliation against employees for filing a complaint or cooperating in a sexual harassment investigation is unlawful
• a written description and examples of sexual harassment
• a written statement of the consequences for unlawful conduct
• a written description of the compliance process for assuring compliance with the law, together with the name, work address, and telephone number of the person or persons responsible for investigating and resolving sexual harassment complaints
• a written description of the process and the names and addresses of federal and state agencies which enforce laws against sexual harassment (EEOC) and (MCAD).

When the new law is effective in November (or January for smaller employers), each employer is required to provide all employees with copies of the company sexual harassment compliance program and policies. Additionally, new employees must receive copies of your company's compliance program and policies at the time of employment. Annually, your company will be required to provide all employees with copies of the company sexual harassment compliance program and policies.

Finally, the law encourages every company to incorporate a sexual harassment training and education program for all employees and supervisory personnel.

Failure to comply with this new law has serious consequences. Massachusetts law affords unlimited, punitive damages for violation of laws prohibiting discrimination and harassment. This underscores the importance of establishing written policies and a workable, compliance and education and training program to deal with sexual harassment.

Please contact Ed Dailey of our firm if you wish further information or assistance on compliance with this important law. 617.443.9292 or edailey@bromsun.com

New Rules for Employee Severance Agreements

Silence Agreements Are Not Golden

It has been routine practice in severance agreements to include confidentiality and silence provisions which prohibit former employees from assisting government investigators. Earlier this month, however, the United States Court of Appeals in Boston struck down such provisions.

The case arose as part of the United States Equal Employment Opportunity Commission's (EEOC) highly visible investigation of ASTRA USA, Inc. When EEOC approached several former employees during the investigation of sexual harassment charges against ASTRA, they declined to assist, citing sweeping silence and confidentiality provisions in severance agreements with the corporation. EEOC immediately sued to enjoin these and related provisions.

In its decision, Equal Employment Opportunity Commission v ASTRA USA, Inc. _F.3d _, 1996 WL 496263, the Court ruled that sweeping silence and confidentiality prohibitions which bar former employees from assisting government investigations "in any way" are void because they materially interfere with EEOC's obligation to protect the public interest by investigation of sexual harassment complaints and enforcement of laws prohibiting sexual harassment.

While this decision is limited to the EEOC investigation, it is clear that the Court's reasoning will apply generally to government investigations. Consequently, broad confidentiality and silence provisions are unlikely to survive judicial challenge. Employers should review current severance agreements which are in effect to assess their exposure to unenforceable silence and confidentiality provisions. Where silence and confidentiality are required in future severance agreements, these must be drafted carefully and narrowly.

The Dispatch is not legal advice. For legal assistance or further information, please call the lawyer with whom you regularly deal at our firm or the authors of these articles.