"How the #MeToo Movement Has Shifted the Legal Landscape and What Businesses Are Doing About It", 18 Oct 2018

...[W]hat has now evolved into the #MeToo movement has drawn the attention of legislators, courts, and the Equal Employment Opportunity Commission (“EEOC”)...This has led to changes in the legal landscape...

...In their settlement agreements, employers typically have included nondisclosure provisions that cover sexual harassment claims. As of the beginning of 2018...the Tax Cuts and Jobs Act eliminated an employer’s ability to take tax deductions over such claims...Several states have...introduced...provisions restricting confidentiality agreements that conceal “public hazards.”  The legislatures of a handful of other states have...enacted bills replicating...similar protections in non-disclosure agreements.  California Governor...signed Senate Bill 820 prohibiting settlement agreements that prevent individuals from disclosing factual information related to claims of sexual assault, harassment, discrimination, or retaliation...

...[E]mployer’s arbitration agreements have come under legislative scrutiny...[S]ome states have introduced new laws banning them in the context of sexual harassment claims...Several states’ legislators have introduced legislation that would render mandatory arbitration in sexual harassment cases unenforceable.  The same effort is also being introduced at the federal level...

...The #MeToo movement has drastically increased the need for internal investigations to be conducted by outside counsel...Employers are considering re-training their workforces and auditing their workplace practices...As new legislation continues to be passed...employers may want to consider revising their employment, confidentiality, arbitration, settlement and release, and other agreements to ensure compliance with any new restrictions and to align them with their company’s culture...