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New Legislation Restricts Arbitration Agreements for Sexual Assault and Sexual Harassment Claims

February 16, 2022

Congress has just approved legislation aimed at invalidating pre-dispute arbitration agreements and class action waivers involving sexual assault and sexual harassment claims.


Known as the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, (“Act”), this legislation amends the Federal Arbitration Act (FAA) to give employees who are parties to arbitration agreements with their employers the option of bringing their claims of sexual assault or sexual harassment in arbitration or court. In addition, the validity or enforceability of an agreement will now be determined by a court, even if a contractual term dictates otherwise.


Here is what employers need to know:


The Act applies to any case under state, tribal or federal law, relating to sexual assault and harassment claims only. Any other valid arbitration agreements remain valid and can be enforced. Furthermore, the Act does not affect claims that arose or accrued before the Act’s enactment.


Employees who are parties to an arbitration agreement may choose to pursue their sexual assault and harassment claims in arbitration or court. Of note, arbitration is more confidential given there is no public record.


Finally, courts will decide whether claims are subject to arbitration, despite what the agreement says. The new law is also explicit that, with respect to these types of claims, the employee, not employer, may choose whether to go to court or arbitrate.


Employers with arbitration agreements should anticipate more sexual assault and harassment claims to be filed in court and expect more types of claims to be filed in court in the future. The Biden Administration is already seeking to broaden the scope of claims not subject to pre-arbitration agreements.


If your business has any questions about this topic, or any other general employment issues, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

Massachusetts’ Superior Court Judge Rules Recording in Workplace Admissible

February 19, 2025
The Massachusetts Superior Court found that Massachusetts’ wiretap statue does not bar employers from using allegedly illegally obtained recordings in civil proceedings. In a recent case, an employee claimed she was forced to resign. Plaintiff’s coworker recorded an argument between the Plaintiff and her supervisor without her consent and shared it with supervisors. The employee then sued for discrimination and retaliation, along with two counts for violation of the wiretap statute. Massachusetts is a two-party consent state but, in this case, it was found that the consent of only one party was needed because nothing in the Wiretap Statute bars the use of an allegedly illegally obtained communication in a civil proceeding. The court found that the provisions about the use of illegally obtained communications in evidence are limited to criminal trials. However, depending on the court, results may differ, as this recording was central to proving and/or disproving the Plaintiff’s claim, and as such, the recording was indispensable as a piece of evidence. Issues with unauthorized recordings have been arising all the time in civil proceedings because recording devices are everywhere, whether they be a cell phone, laptop or other recording device. This ruling is good for employers, as if there is an otherwise inadmissible recording that is made that disproves an employee’s claims, it can be admissible as evidence if meets the same scenario above. However, employers must be careful to use these recordings as they may be inadmissible and may not show the same thing that the employer believes in the court’s eyes. This being said, it is prudent to consult an attorney before utilizing a recording for any employment action or in legal action to avoid unwanted consequences. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

After the DEI Executive Order

February 14, 2025
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