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, which takes effect immediately, amends the Federal Arbitration Act (the “FAA”) by narrowing both its scope and applicability. Specifically, the Act prohibits employers from forcing employees to settle sexual misconduct claims in closed-door arbitration venues.

Before the Act, many sexual harassment claims were resolved confidentially under pre-dispute arbitration agreements that employees were required to sign as a condition of employment.  Although the Act does not ban arbitration of sexual assault and harassment claims, it prohibits employers from mandating that employees agree to arbitrate such disputes.  The Act also bars pre-dispute joint or class action waivers in connection with sexual assault and harassment claims.  Interestingly, the Act does not just apply to claims of sexual harassment arising under federal law (i.e., Title VII), but it applies to such claims brought under state or tribal law.  As a result, small employers that would not be covered under federal law would still be subject to the Act for claims raised under state law.  The Act is one of many legislative changes arising from the #MeToo movement and is intended to shed light on incidents of sexual misconduct in the workplace.

Now, employees with claims of sexual misconduct may choose to file lawsuits against their employers and alleged perpetrators in a public forum rather than submitting their claims to private arbitration.  Employees asserting sexual assault or sexual harassment claims may bring such claims in court, either as an individual or part of a class action.  Employees may still opt to resolve their claims in arbitration but cannot be forced to do so, regardless of whether they previously entered into an arbitration agreement.

This Act has significant impact for employers who rely on arbitration agreements as a tool to efficiently resolve employee disputes, and as protection against high jury verdicts.  While arbitration agreements regarding other types of claims remain enforceable, existing arbitration agreements will not prevent employees from bringing forth claims of sexual misconduct in court.  Accordingly, employers should review and revise any mandatory arbitration provisions in their employment-related agreements.  This includes employee handbooks, offer letters, waivers and contracts.  Murtha Cullina’s Labor & Employment Group is available to assist in addressing questions regarding these and other issues.

 

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Photo of Alyssa R. Ferreone Alyssa R. Ferreone

Alyssa Ferreone is an Associate in the Murtha Cullina Litigation Department.

Prior to joining Murtha Cullina, Alyssa was a Judicial Law Clerk for the Honorable Robert J. Devlin, Jr. and the Honorable Melanie L. Cradle at the Connecticut Appellate Court.

Alyssa earned her…

Alyssa Ferreone is an Associate in the Murtha Cullina Litigation Department.

Prior to joining Murtha Cullina, Alyssa was a Judicial Law Clerk for the Honorable Robert J. Devlin, Jr. and the Honorable Melanie L. Cradle at the Connecticut Appellate Court.

Alyssa earned her J.D. from Quinnipiac University School of Law, magna cum laude.  While in law school, Alyssa was a judicial intern for the Honorable Vanessa L. Bryant of the United States District Court for the District of Connecticut.  She served as the Supervising Note Editor on the Quinnipiac Health Law Journal and the Vice Magister of the Burns Inn Chapter of the Phi Delta Phi legal honor society. Alyssa was selected by the law school faculty to receive the Academic Excellence Award at commencement.

Alyssa earned her B.S. from Southeastern University where she named “Most Outstanding Graduate in the Legal Studies Major” at commencement.

Photo of Patricia E. Reilly Patricia E. Reilly

Patricia E. Reilly, Chair of the Labor and Employment Practice Group, is an experienced litigator who represents clients in a wide range of cases including, employment discrimination and related torts, non-compete and restrictive covenants, wage and hour, breach of contract, unfair trade practices…

Patricia E. Reilly, Chair of the Labor and Employment Practice Group, is an experienced litigator who represents clients in a wide range of cases including, employment discrimination and related torts, non-compete and restrictive covenants, wage and hour, breach of contract, unfair trade practices, and business disputes. In addition to maintaining a thriving litigation practice, Tricia counsels clients on a variety of employment-related issues including hiring, firing, and discipline; wage and hour; state and federal FMLA; sexual harassment investigations and prevention; Title IX; pregnancy and disability accommodation; and avoidance of employment discrimination liability.

Tricia is listed as a leading Labor and Employment Lawyer in Chambers USA.  She is listed in Best Lawyers in America®, and in 2017, Best Lawyers in America® recognized her as “Lawyer of the Year”, New Haven, Litigation – Labor and Employment. Tricia is a member of the American Bar Association, the Connecticut Bar Association and the New Haven County Bar Association.  She received her B.A. from Wesleyan University and her J.D. from University of California, Berkeley School of Law.

Photo of Salvatore G. Gangemi Salvatore G. Gangemi

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of…

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of trade secrets, restrictive covenants, breach of employment contract, fiduciary duty, and other work-related common law claims. Sal also counsels clients on day-to-day issues involving workplace management and administration, including requests for reasonable accommodation for disabilities, for family and medical leave, and wage and hour issues.  He conducts employment law training on a variety of topics, including sexual harassment prevention and wage/ hour compliance.  He also drafts employment policies and agreements, and assists clients in auditing worker classification practices and policies both in the context of the Fair Labor Standards Act and state laws governing independent contractor determinations.