Changes to Workplace Harassment Policies and Procedures Under Senate Bill 479

/in , /by

Dan Lawler

From our Spring 2020 e-newsletter

With the passage of SB 479 during the 2019 Legislative Session, public employers must make a variety of changes to the policies and procedures that they use to address workplace harassment. This article provides a general summary of the changes that the bill requires and how local governments can make these changes. However, this article is not intended to replace legal advice tailored to the specific needs of each public employer. If your local government needs assistance in complying with SB 479, our firm would be happy to provide guidance on any of the bill’s requirements, to draft a new anti-harassment policy, or to modify an existing anti-harassment policy to comply with the bill.

What Changes Must Employers Make?

1)       Adopt a Written Anti-Harassment Policy (Effective January 1, 2020)

SB 479 requires employers to adopt a written anti-harassment policy and to provide a copy of the policy to all employees. The bill contains a list of specific items that the policy must include to help employees understand the options and resources available to them to address instances of workplace harassment. If employers have already adopted a workplace harassment policy, we recommend reviewing the policy closely against the provisions of SB 479. Any workplace harassment policy that lacks one or more of the items that the bill lists is non-compliant and should be revised as soon as possible. Please let our firm know if your local entity desires assistance with drafting a policy that complies with SB 479.

2)       Develop an Internal Investigation Procedure (Effective January 1, 2020)

SB 479 also requires employers to develop written procedures to investigate reports of workplace harassment from employees. We recommend including these procedures as part of the workplace harassment policy discussed above. The bill lists specific items that the investigation procedures must include, such as the person designated to receive reports of harassment, instructions on maintaining records related to workplace harassment, and how an employee can file a complaint of harassment. Although existing anti-harassment policies may include some or all of the required items, employers should examine their existing policies and procedures to determine whether updates are needed. Our firm would be happy to help your entity determine whether changes are required and to ensure compliance with the bill.

3)       Be Cautious with Nondisclosure or Nondisparagement Agreements (Effective October 1, 2020)

Beginning on October 1, 2020, employers will be subject to greater restrictions on the use of nondisclosure or nondisparagement agreements related to instances of workplace harassment. These restrictions will prohibit employers from requiring employees aggrieved by workplace harassment to enter into agreements that have the purpose or effect of preventing employees from discussing the workplace harassment incident. However, an employer can enter into such an agreement if the victim of workplace harassment requests one and has seven days to revoke the agreement. An employer can also enter into a nondisclosure or nondisparagement agreement with the alleged violator of the harassment policy if it makes a good faith determination that the person engaged in workplace harassment. Please let us know if your locality desires help drafting any agreements discussed in this paragraph to comply with SB 479’s requirements.

How Can Employers Make These Changes?

If your local government does not have an anti-harassment policy in place, now is a good time to develop one that meets the requirements of SB 479 and fits the specific needs of your locality. Our firm would be happy to consult with your staff to draft such a policy. We can also review and revise any template or sample anti-harassment policies to ensure compliance with SB 479, if desired.

If your local government does have an adopted anti-harassment policy, we recommend reviewing the policy to determine whether to: 1) replace the policy in its entirety; or 2) modify the policy to include the items that SB 479 requires. Most existing anti-harassment policies can be modified to comply with the bill without too much difficulty, though some local governments may prefer a wholesale replacement. Making changes to comply with SB 479 also presents a valuable opportunity for local governments to evaluate the effectiveness of existing features within their anti-harassment policies. If your local entity desires assistance with reviewing and modifying an existing anti-harassment policy, we would be happy to help determine whether changes are needed and to revise the policy to comply with SB 479.

Things to Watch Out For

After reviewing SB 479 and numerous anti-harassment policies drafted in response to the bill, our firm has identified a handful of requirements that are easily overlooked or are likely to cause confusion for entities. The following bullets describe these requirements in greater detail. Please feel free to reach out with any questions about the items below.

  • Legal Resources and Counseling Services. SB 479 requires anti-harassment policies to provide information to connect victims of workplace harassment to specific legal resources and counseling services. One easy way to do this is to insert website links and phone numbers for groups that provide these resources and services. However, employers should monitor these links and phone numbers over time to ensure their accuracy and to maintain compliance with SB 479.
  • Timeline for Relief. SB 479 requires anti-harassment policies to provide the timeline available for victims of workplace harassment to seek relief. Under the bill, victims have five years to file an internal complaint, a complaint with the Bureau of Labor and Industries, or a legal action. We recommend including information about the five-year relief timeline in a prominent, noticeable location within your entity’s anti-harassment policy.
  • The Meaning of Nondisclosure and Nondisparagement. SB 479 requires anti-harassment policies to contain a statement that the employer may not require an employee to enter into a nondisclosure or nondisparagement agreement, including a description of the meaning of those terms. The bill does not explicitly define these terms, but we recommend using the following language to describe them: “nondisclosure and nondisparagement agreements generally have the purpose or effect of preventing employees from disclosing or discussing workplace harassment.”