2019 -- S 0330

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LC001320

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- FAIR EMPLOYMENT PRACTICES -

- SEXUAL HARASSMENT

     

     Introduced By: Senators Cano, Goldin, Euer, Murray, and Lynch Prata

     Date Introduced: February 13, 2019

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 28-5-6 and 28-5-7.3 of the General Laws in Chapter 28-5 entitled

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"Fair Employment Practices" are hereby amended to read as follows:

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     28-5-6. Definitions.

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     When used in this chapter:

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     (1) "Age" means anyone who is at least forty (40) years of age.

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     (2) "Because of sex" or "on the basis of sex" include, but are not limited to, because of or

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on the basis of pregnancy, childbirth, or related medical conditions, and women affected by

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pregnancy, childbirth, or related medical conditions shall be treated the same for all employment

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related purposes, including receipt of benefits under fringe benefit programs, as other persons not

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so affected but similar in their ability or inability to work, and nothing in this chapter shall be

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interpreted to permit otherwise.

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     (3) "Commission" means the Rhode Island commission against discrimination created by

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this chapter.

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     (4) "Conviction" means, for the purposes of this chapter only, any verdict or finding of

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guilt after a criminal trial or any plea of guilty or nolo contendere to a criminal charge.

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     (5) "Disability" means a disability as defined in § 42-87-1.

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     (6) "Discriminate" includes segregate or separate.

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     (7) "Employee" does not include any individual employed by his or her parents, spouse,

 

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or child, or in the domestic service of any person.

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     (8)(i) "Employer" includes the state and all political subdivisions of the state and any

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person in this state employing four (4) or more individuals, and any person acting in the interest

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of an employer directly or indirectly.

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     (ii) Nothing in this subdivision shall be construed to apply to a religious corporation,

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association, educational institution, or society with respect to the employment of individuals of its

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religion to perform work connected with the carrying on of its activities.

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     (9) "Employment agency" includes any person undertaking with or without compensation

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to procure opportunities to work, or to procure, recruit, refer, or place employees.

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     (10) "Firefighter" means an employee the duties of whose position includes work

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connected with the control and extinguishment of fires or the maintenance and use of firefighting

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apparatus and equipment, including an employee engaged in this activity who is transferred or

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promoted to a supervisory or administrative position.

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     (11) "Gender identity or expression" includes a person's actual or perceived gender, as

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well as a person's gender identity, gender-related self image, gender-related appearance, or

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gender-related expression; whether or not that gender identity, gender-related self image, gender-

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related appearance, or gender-related expression is different from that traditionally associated

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with the person's sex at birth.

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     (12) "Labor organization" includes any organization which exists for the purpose, in

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whole or in part, of collective bargaining or of dealing with employers concerning grievances,

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terms or conditions of employment, or of other mutual aid or protection in relation to

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employment.

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     (13) "Law enforcement officer" means an employee the duties of whose position include

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investigation, apprehension, or detention of individuals suspected or convicted of offenses against

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the criminal laws of the state, including an employee engaged in such activity who is transferred

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or promoted to a supervisory or administrative position. For the purpose of this subdivision,

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"detention" includes the duties of employees assigned to guard individuals incarcerated in any

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penal institution.

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     (14) "Person" includes one or more individuals, partnerships, associations, organizations,

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corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.

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     (15) "Religion" includes all aspects of religious observance and practice, as well as belief,

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unless an employer, union or employment agency demonstrates that it is unable to reasonably

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accommodate to an employee's or prospective employee's or union member's religious

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observance or practice without undue hardship on the conduct of its business.

 

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     (16) "Sexual orientation" means having or being perceived as having an orientation for

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heterosexuality, bisexuality, or homosexuality. This definition is intended to describe the status of

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persons and does not render lawful any conduct prohibited by the criminal laws of this state nor

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impose any duty on a religious organization. This definition does not confer legislative approval

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of that status, but is intended to assure the basic human rights of persons to obtain and hold

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employment, regardless of that status.

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     (17) The terms, as used regarding persons with disabilities:

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     (i) "Auxiliary aids and services" and "reasonable accommodation" shall have the same

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meaning as those items are defined in § 42-87-1.1; and

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     (ii) "Hardship" means an "undue hardship" as defined in § 42-87-1.1.

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     28-5-7.3. Discriminatory practice need not be sole motivating factor.

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     An unlawful employment practice may be established in an action or proceeding under

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this chapter when the complainant demonstrates that race, color, religion, sex, sexual orientation,

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gender identity or expression, disability, age, or country of ancestral origin, or retaliation was a

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motivating factor for any employment practice, even though the practice was also motivated by

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other factors. Nothing contained in this section shall be construed as requiring direct evidence of

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unlawful intent or as limiting the methods of proof of unlawful employment practices under § 28-

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5-7.

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     SECTION 2. Sections 28-51-1, 28-51-2 and 28-51-3 of the General Laws in Chapter 28-

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51 entitled "Sexual Harassment, Education and Training in the Workplace" are hereby amended

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to read as follows:

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     28-51-1. Definitions.

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     (a) As used in this chapter, "Employer" means any entity employing fifty (50) four (4) or

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more employees.

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     (b) As used in this chapter, "Sexual harassment" means any unwelcome sexual advances

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or requests for sexual favors or any other verbal or physical conduct of a sexual nature when:

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     (1) Submission to that conduct or those advances or requests is made either explicitly or

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implicitly a term or condition of an individual's employment; or

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     (2) Submission to or rejection of the conduct or advances or requests by an individual is

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used as the basis for employment decisions affecting the individual; or

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     (3) The conduct or advances or requests have the purpose or effect of unreasonably

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interfering with an individual's work performance or creating an intimidating, hostile, or

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offensive working environment.

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     28-51-2. Adoption of workplace policy and statement.

 

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     (a) All employers and employment agencies shall promote a workplace free of sexual

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harassment.

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     (b) Every employer shall:

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     (1) Adopt a policy against sexual harassment that shall include:

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     (i) A statement that sexual harassment in the workplace is unlawful;

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     (ii) A statement that it is unlawful to retaliate against an employee for filing a complaint

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of sexual harassment or for cooperating in an investigation of a complaint for sexual harassment;

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     (iii) A description and examples of sexual harassment;

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     (iv) A statement of the range of consequences for employees who are found to have

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committed sexual harassment;

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     (v) A description of the process for filing internal complaints about sexual harassment

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and the work addresses and telephone numbers of the person or persons to whom complaints

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should be made; and

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     (vi) The identity of the appropriate state and federal employment discrimination

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enforcement agencies, and directions as to how to contact these agencies.

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     (2) Provide to all employees a written copy of the employer's policy against sexual

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harassment; provided, that a new employee shall be provided such a copy at the time of his or her

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employment.

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     (c) Employers are encouraged required to conduct an education and training program for

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new employees and members, within one year month of commencement of employment or

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membership, which includes at a minimum the information set forth in this section. Employers

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are encouraged required to conduct additional training for new supervisory and managerial

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employees within one year month of commencement of employment which shall include at a

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minimum the information set forth in subsection (b) of this section, the specific responsibilities of

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supervisory and managerial employees and the methods that these employees should take to

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ensure immediate and appropriate corrective action in addressing sexual harassment complaints.

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Employers and appropriate state agencies are encouraged required to cooperate in making this

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training available.

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     (d) Employers shall provide copies of their written policies on sexual harassment to all

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employees upon their request.

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     (e) Employers shall be required to maintain copies of their written policies on sexual

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harassment at their business premises, and copies of such policies shall be made available to any

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state or federal employment discrimination enforcement agency upon request.

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     28-51-3. Education and training programs.

 

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     Employers are encouraged required to conduct an education and training program on

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sexual harassment consistent with the aims and purposes of this chapter for all employees,

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including, but not limited to supervisory or managerial personnel, on or before September 1, 1997

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September 1, 2019.

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     SECTION 3. Chapter 28-51 of the General Laws entitled "Sexual Harassment, Education

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and Training in the Workplace" is hereby amended by adding thereto the following section:

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     28-51-4. Enforcement.

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     (a) The commission for human rights is empowered and directed, as hereinafter provided,

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to prevent any employer or employment agency from violating any of the provisions of this

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chapter; provided, that before instituting a formal hearing, it shall attempt by informal methods of

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conference, persuasion and conciliation, to induce compliance with those provisions. Upon the

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commission's own initiative or whenever an aggrieved individual or an organization chartered for

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the purpose of combating discrimination, such individual or organization being hereinafter

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referred to as "the complainant", makes a charge to the commission that any employer or

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employment agency hereinafter referred to as "the respondent", has violated or is violating any of

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the provisions of this chapter, the commission may proceed in the same manner and with the

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same powers as provided in § 28-5-13 and the provisions of §§ 28-5-16 through 28-5-36, as to the

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powers, duties and rights of the commission, its members, hearing examiners, the complainant,

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and respondent under this section.

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     (b) The department of labor and training is empowered and directed, as hereinafter

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provided, to prevent any employer or employment agency from violating any of the provisions of

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this chapter. The director of labor and training shall have the same powers and duties as set forth

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in chapter 12 and chapter 14 of title 28 to investigate, inspect, subpoena, and enforce through

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administrative hearings, complaints that allege that an employer or employment agency has

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violated or is violating any of the provisions of this chapter.

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     (c) The commission and the department of labor shall cooperate in the investigation of

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complaints filed under this section when the allegations are within the jurisdiction of both

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agencies.

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     SECTION 4. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- FAIR EMPLOYMENT PRACTICES -

- SEXUAL HARASSMENT

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     This act would extend protection to persons employed in domestic service and include

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retaliation as an unlawful employment practice. This act would require employers of four (4) or

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more employees rather than fifty (50) to comply with the sexual harassment education and

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workplace training requirements, conduct such a program for new employees within one month

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of the date of employment and for all other employees before September 1, 2019. Enforcement

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would be vested in the commission for human rights and/or the department of labor and training.

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     This act would take effect upon passage.

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