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PRINTER'S NO. 2935
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1965
Session of
2018
INTRODUCED BY KRUEGER-BRANEKY, SIMS, KINSEY, MURT, FRANKEL,
RABB, SCHLOSSBERG, SOLOMON, DAVIS, DRISCOLL, MULLERY,
D. MILLER, GAINEY, ROTHMAN, DEAN, COMITTA, GOODMAN,
DONATUCCI, DAVIDSON, BOYLE, J. HARRIS, KAVULICH, STURLA,
MADDEN, READSHAW, McCARTER, HILL-EVANS, SCHWEYER, CHARLTON,
DERMODY, PASHINSKI, BRIGGS, FITZGERALD, THOMAS, SNYDER, KIM,
DALEY, DeLISSIO, ROEBUCK, SAMUELSON, CALTAGIRONE, HELM,
KAUFFMAN, YOUNGBLOOD, TOOHIL, CARROLL, FREEMAN, HANNA, ROZZI,
SANTORA, MARKOSEK, ROE, DEASY, GILLEN, STEPHENS, P. COSTA AND
RAVENSTAHL, JANUARY 24, 2018
REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, JANUARY 24, 2018
AN ACT
Amending Title 46 (Legislature) of the Pennsylvania Consolidated
Statutes, providing for professional conduct.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 46 of the Pennsylvania Consolidated
Statutes is amended by adding a part to read:
PART III
PROFESSIONAL CONDUCT
Chapter
21. Complaints of Behavior Constituting Sexual Harassment
CHAPTER 21
COMPLAINTS OF BEHAVIOR CONSTITUTING
SEXUAL HARASSMENT
Subchapter
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A. General Provisions
B. Office of Compliance
C. Administrative Provisions
D. Prevention and Response Training
SUBCHAPTER A
GENERAL PROVISIONS
Sec.
2101. Scope of chapter.
2102. Legislative intent.
2103. Definitions.
2104. Prohibition.
2105. Retaliation.
§ 2101. Scope of chapter.
This chapter relates to member and employee training and
official oversight (ME TOO) for legislative agencies.
§ 2102. Legislative intent.
This chapter is intended to:
(1) Protect employees of legislative agencies from
sexual harassment.
(2) Provide for the investigation and resolution of
allegations involving sexual harassment of employees of
legislative agencies.
(3) Provide for programs of sexual harassment prevention
and response training in employment.
§ 2103. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Caucus." The Democratic or Republican Caucus of the Senate
or House of Representatives.
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"Complaint." An allegation of a violation of section 2104
(relating to prohibition) or 2105 (relating to retaliation) made
by an employee under this chapter and the policies and
procedures established by the office.
"Director." The director of the office.
"Elected official." A member of the Senate or House of
Representatives.
"Employee." The following:
(1) An employee of a legislative agency.
(2) A paid or unpaid intern of a legislative agency.
"Legislative agency" or "employer." Any of the following:
(1) The Senate.
(2) The House of Representatives.
(3) The Capitol Preservation Committee.
(4) The Center for Rural Pennsylvania.
(5) The Joint Legislative Air and Water Pollution
Control and Conservation Committee.
(6) The Joint State Government Commission.
(7) The Legislative Budget and Finance Committee.
(8) The Legislative Data Processing Committee.
(9) The Independent Regulatory Review Commission.
(10) The Legislative Reference Bureau.
(11) The Local Government Commission.
(12) The Pennsylvania Commission on Sentencing.
(13) The Legislative Reapportionment Commission.
(14) The Legislative Audit Advisory Commission.
(15) A caucus.
(16) The Office of Compliance established in Subchapter
B (relating to Office of Compliance).
(17) Another office, agency, board or commission under
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the control or supervision of the Senate or House of
Representatives.
"Office." The Office of Compliance established in Subchapter
B.
"Party." The employee alleging a violation of section 2104
under this chapter or the employee or elected official against
whom the allegation is made, as the context shall require.
"Selection committee." The selection committee established
in section 2111(b) (relating to Office of Compliance).
"Sexual harassment." Unwelcome sexual advances, requests for
sexual favors and other verbal or physical conduct of a sexual
nature that explicitly or implicitly affects an individual's
employment and unreasonably interferes with an individual's work
performance.
§ 2104. Prohibition.
The following conduct is prohibited:
(1) Using the submission to or rejection by an employee
of conduct constituting sexual harassment as a basis for an
employment decision affecting the employee.
(2) Making submission to conduct constituting sexual
harassment, either explicitly or implicitly, a term or
condition of an employee's employment.
(3) Engaging in conduct constituting sexual harassment
that is so frequent or severe that it creates a hostile or
offensive work environment.
§ 2105. Retaliation.
No adverse action may be taken against an employee, other
than an employee against whom a complaint under this chapter or
a civil action has been filed, who does any of the following:
(1) files a complaint under section 2114 (relating to
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complaint and hearing) or a civil action under section 2113
(relating to initiation of proceedings);
(2) participates in proceedings resulting from the
filing of a complaint or civil action; or
(3) participates in an investigation conducted under
section 2114(b).
SUBCHAPTER B
OFFICE OF COMPLIANCE
Sec.
2111. Office of Compliance.
2112. Duties.
2113. Initiation of proceedings.
2114. Complaint and hearing.
2115. Judicial review.
2116. Settlement.
2117. Right-to-Know Law.
§ 2111. Office of Compliance.
(a) Establishment.--The Office of Compliance is established
as an independent office within the legislative branch of the
State government. The office shall be charged with receiving,
investigating and resolving complaints.
(b) Selection committee.--The selection committee is
established to conduct a search for, interview applicants for
and appoint a director. The selection committee shall consist of
one member from each of the four caucuses, to be appointed by:
(1) the Majority Leader and the Minority Leader of the
Senate; and
(2) the Majority Leader and the Minority Leader of the
House of Representatives.
(c) Director.--
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(1) The office shall be headed by a director appointed
by the selection committee. The appointment shall be made
without regard to political affiliation and solely on the
basis of fitness to perform the duties of director. The
director must have training or experience in the application
of rights, protections and remedies relating to sexual
harassment.
(2) No individual who is registered as a lobbyist under
65 Pa.C.S. Ch. 13A (relating to lobbying disclosure) or who
is an employee at the time of submission of an application
for appointment may be eligible for appointment as director.
(3) The compensation of the director shall be set by the
selection committee.
(4) The director may not engage in outside employment
while serving as director, unless the outside employment is
approved in writing by the selection committee.
(d) Term of director.--
(1) The term of office of the director shall be six
years. An individual appointed as director to fill a vacancy
prior to the expiration of a term shall serve only for the
unexpired portion of the term.
(2) An individual who serves as director at the
expiration of a term may continue to serve until a successor
is appointed.
(3) The director may be removed for cause by a
concurrent resolution passed by the Senate and the House of
Representatives.
(e) Staff.--
(1) The director shall hire attorneys, individuals to
serve as hearing officers, investigators and other staff as
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the director deems necessary to carry out the duties of the
office. Staff shall be hired without regard to political
affiliation. The director shall use best efforts to assure
that individuals being considered for hire by the office are
not biased and do not have a conflict of interest or
potential conflict of interest with any individual covered by
this chapter. Individuals hired to serve as hearing officers
shall be licensed to practice law in this Commonwealth.
(2) Staff of the office shall be compensated at a rate
to be determined by the director.
(3) Staff of the office, including the director, shall
be considered public employees for purposes of participating
in any State employees' pension or health insurance plan and
under 65 Pa.C.S. Ch. 11 (relating to ethics standards and
financial disclosure).
(4) Staff who are designated under section 2112(3)
(relating to duties) must have training or experience in the
application of rights, protections and remedies relating to
sexual harassment.
§ 2112. Duties.
The office shall perform the following duties:
(1) Establish and implement policies and procedures for
reporting, investigating and resolving complaints not
inconsistent with this chapter. The policies and procedures
shall include a separate process for allegations made against
an employee of the office and shall be posted on the office's
publicly accessible Internet website.
(2) Develop and implement the training programs under
Subchapter D (relating to prevention and response training).
(3) Prepare and distribute for posting in each
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legislative agency information regarding how to access the
policies and procedures posted under paragraph (1), the
availability of the assistance of a lawyer or reimbursement
for counseling under Subchapter C (relating to administrative
provisions) and the names and contact information of the
staff in the office with whom employees should be in contact
under section 2113(a) (relating to initiation of proceedings)
or should file a complaint under section 2114 (relating to
complaint and hearing).
(4) Develop and maintain a master list of individuals
licensed to practice law in this Commonwealth who are
experienced in adjudicating or arbitrating sexual harassment
complaints to serve as hearing officers under section 2114.
The individuals on the list developed and maintained under
this paragraph shall supplement any individuals hired under
section 2111(e) (relating to Office of Compliance) as
employees of the office to serve as hearing officers.
§ 2113. Initiation of proceedings.
(a) Initial contact.--An employee who intends to make an
allegation of the violation by another employee or an elected
official of section 2104 (relating to prohibition) or 2105
(relating to retaliation) must contact the director or an
individual designated under 2112(3) (relating to duties) for
assistance in determining the employee's rights under this
chapter and other Federal, State or local law.
(b) Confidentiality.--The director or an individual
designated under section 2112(3) who is contacted by an employee
under subsection (a), may not disclose or acknowledge to any
other person any information relating to the initial contact,
except when the disclosure or acknowledgment pertains to any of
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the following:
(1) communicating with staff of the office for purposes
of assisting in determining the employee's rights;
(2) consulting with a law enforcement official or agency
for the purpose of initiating, participating in or responding
to an investigation or prosecution by the law enforcement
official or agency; or
(3) such other exceptions as the office by regulation
may direct.
(c) Filing of complaint or action.--
(1) An employee alleging a violation of section 2104 or
2105 may file a complaint under section 2114 (relating to
complaint and hearing) or an action in Commonwealth Court in
its original jurisdiction without exhausting administrative
remedies available under this chapter.
(2) Nothing in this chapter shall be construed to
prohibit an employee from speaking to law enforcement about
alleged criminal conduct.
§ 2114. Complaint and hearing.
(a) Filing of complaint.--An employee may file a written
complaint with the office. The director shall serve a copy of
the complaint on the employee or elected official against whom
the allegations are made and the employee's employer or the
elected official's caucus.
(b) Investigation.--Upon receipt of the complaint, the
director shall assign an investigator to investigate the
allegations in the complaint. The investigator shall be
authorized to conduct such interviews and review such materials
as the investigator deems appropriate, shall prepare a written
report of the investigator's findings, and shall provide a copy
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of the report to the hearing officer appointed by the director
under subsection (c).
(c) Appointment of hearing officer.--Upon receipt of the
complaint, the director shall appoint a hearing officer to
consider the complaint and the investigator's report, conduct a
hearing and render a decision. Staff of the office not involved
in the investigation of the complaint may assist the hearing
officer.
(d) Dismissal.--After review of the investigator's report,
the hearing officer may dismiss a complaint that the hearing
officer finds was filed without basis in law or fact. The
hearing officer shall notify the parties in writing of a
dismissal under this subsection.
(e) Hearing.--Unless a complaint is dismissed under
subsection (d), a hearing shall be:
(1) Commenced no later than 60 days after the completion
of the investigation under subsection (b), except that the
office may, for good cause, extend the time for conducting
the hearing for up to an additional 30 days.
(2) Conducted in closed session by the hearing officer.
(3) Except as otherwise provided in this chapter,
conducted in the same manner as hearings conducted before
Commonwealth agencies in 2 Pa.C.S. Ch. 5 Subch. A (relating
to practice and procedure of Commonwealth agencies), except
for 2 Pa.C.S. § 508 (relating to notice to Department of
Justice).
(f) Discovery and attorneys.--
(1) Reasonable prehearing discovery may be permitted at
the discretion of the hearing officer. Discovery may include
access to the investigator's report.
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(2) The parties shall be entitled to be represented in
the hearing by attorneys of their choice.
(g) Subpoenas.--
(1) At the request of a party, a hearing officer may
issue subpoenas for the attendance of witnesses and for the
production of books, papers, records, accounts, reports,
documents and data and information produced and stored by any
electronic data processing system as the hearing officer
deems necessary.
(2) The hearing officer shall have the power to
administer oaths and affirmations to witnesses and may cause
the deposition of witnesses either residing within or without
this Commonwealth to be taken in the manner prescribed by law
for taking depositions in civil actions.
(3) Any person who willfully neglects or refuses to
respond to a subpoena issued under this section shall be
subject to the penalties provided by the laws of this
Commonwealth in such case.
(4) If a person refuses, on the basis of relevance,
privilege or other objection, to testify in response to a
question or to produce records in connection with a
proceeding before a hearing officer, the hearing officer
shall rule on the objection.
(h) Burden and standard of proof.--The employee filing the
complaint shall have the burden of proving, by a preponderance
of the evidence, that a violation of section 2104 (relating to
prohibition) or 2015 (relating to retaliation) has occurred.
(i) Confidential proceeding.--
(1) Except as otherwise provided in this subsection and
as may be required by legal process in connection with an
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appeal of the hearing officer's decision under section 2115
(relating to judicial review):
(i) the name of the employee filing the complaint,
the complaint, filings by the parties and evidence
produced, including investigative reports, in connection
with a complaint filed and hearing held under this
section shall be confidential; and
(ii) no evidence or testimony taken in a closed
session may be released to any person.
(2) The final decision of the hearing officer shall not
be confidential, except that at the request of the employee
who filed the complaint, the name of the employee and any
facts that may lead to the identification of the employee
shall be redacted before the decision is issued.
(j) Decision.--
(1) The hearing officer shall issue a final decision in
writing as expeditiously as possible, but in no case more
than 90 days after the conclusion of the hearing.
(2) The final decision shall be served by the office on
the parties and the employer or caucus receiving a copy of
the complaint under subsection (a).
§ 2115. Judicial review.
(a) Appeal.--A party aggrieved by a decision of a hearing
officer under section 2114 (relating to complaint and hearing)
may file a petition for review of the decision in Commonwealth
Court, which shall have appellate jurisdiction over the
petition.
(b) Standard of review.--The court shall set aside a
decision of a hearing officer if the court determines that the
decision of the hearing officer was:
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(1) arbitrary, capricious, an abuse of discretion or
otherwise not consistent with law;
(2) inconsistent with required procedures; or
(3) unsupported by substantial evidence.
§ 2116. Settlement.
(a) General rule.--The parties may enter into a settlement
agreement at any time during the proceedings authorized by this
chapter with such terms as may be agreed to by the parties.
(b) Required party.--
(1) If the agreement requires the payment of money to or
for the benefit of the employee filing the complaint, the
employer of the employee against whom the complaint was
filed, or the applicable caucus in the case of an elected
official, must be a party to the agreement.
(2) Paragraph (1) shall not apply if the money is to be
paid from the personal funds of the employee or elected
official against whom the complaint was filed.
§ 2117. Right-to-Know Law.
(a) Legislative agency.--For purposes of the act of February
14, 2008 (P.L.6, No.3), known as the Right-to-Know Law, the
office shall be considered a legislative agency as defined in
section 102 of the Right-to-Know Law and shall provide
legislative records in accordance with the Right-to-Know Law.
(b) Final decision.--The final decision of the hearing
officer under section 2114 (relating to complaint and hearing)
shall be publicly available from the office in response to a
request submitted under the Right-to-Know Law, except that at
the request of the employee who filed the complaint, the name of
the employee and any facts that may lead to the identification
of the employee shall be redacted before the decision is issued.
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SUBCHAPTER C
ADMINISTRATIVE PROVISIONS.
Sec.
2121. Legal assistance.
2122. Counseling.
2123. Nondisclosure.
2124. Workplace adjustments.
2125. Payment of awards and settlements.
2126. Reports.
2127. Safe harbor.
§ 2121. Legal assistance.
(a) Option.--
(1) Either an employee who files a complaint under
Subchapter B (relating to Office of Compliance) or the
employee or elected official against whom a complaint is
filed may, upon request, engage legal counsel of the employee
or elected official's choosing to provide legal assistance
and advice to the employee or elected official in connection
with proceedings initiated under this chapter.
(2) The office shall pay for the reasonable cost of
legal counsel under this section.
(3) This section shall not apply to legal counsel
engaged by a party in connection with a civil action filed
under section 2113(b)(relating to initiation of proceedings).
(b) Approval.--
(1) An employee or elected official who intends to
engage legal counsel under subsection (a) must provide to the
director the name of the legal counsel to be engaged and the
name of the legal counsel's law firm if applicable, and the
proposed hourly rate to be charged.
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(2) The director shall approve the employee's or elected
official's choice if the hourly rate is reasonable for the
work to be performed and reflects market rates in the
location where the legal counsel practices.
(c) Contract.--
(1) If approval under subsection (b) has been received,
the employee or elected official must enter into a written
contract with the legal counsel or law firm.
(2) Invoices for payment under the contract shall be
provided directly to the employee or elected official who
shall review and approve them for payment by the office. The
employee or elected official shall provide the office with a
written request for payment that only reflects the amount to
be paid.
(3) The office shall develop a standard form for use by
employees and elected officials under paragraph (2).
§ 2122. Counseling.
An employee filing a complaint with the office under
Subchapter B (relating to Office of Compliance) that does not
have health insurance may seek reimbursement from the office for
the cost of any counseling sought by the employee from a
professional therapist trained in psychological issues arising
out of subjection by the employee to sexual harassment.
§ 2123. Nondisclosure.
(a) Involuntary agreements.--A nondisclosure agreement or
provision may not be imposed on an employee as a condition of
the initiation of any of the procedures or assistance available
under this chapter.
(b) Voluntary agreements.--Nothing in subsection (a) shall
be construed to prohibit the parties to any procedure available
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under this chapter from voluntarily entering into a settlement
agreement with a nondisclosure provision agreed to by each party
as part of the settlement of a complaint or a civil action.
(c) Elected officials.--Notwithstanding the provisions of
subsection (b), an elected official who is the subject of a
complaint shall not benefit from a nondisclosure provision under
subsection (b) if a completed investigation by the office finds
that the complaint is credible.
§ 2124. Workplace adjustments.
(a) General rule.--The employer of an employee filing a
complaint under section 2114 (relating to complaint and hearing)
shall, upon the request of the employee filing the complaint,
make adjustments to the employee's work hours and location that
may be appropriate under the circumstances of the allegations in
the complaint.
(b) Forms of adjustments.--The adjustments may include:
(1) removing the employee filing the complaint or the
employee or elected official against whom the complaint is
filed from the physical work location of the employee filing
the complaint; or
(2) allowing the employee filing the complaint to be
placed on administrative leave with continued pay and
benefits, if applicable.
§ 2125. Payment of awards and settlements.
(a) Source.--
(1) If the resolution of allegations of a violation of
section 2104 (relating to prohibition) or 2105 (relating to
retaliation) under this chapter requires the payment of funds
to the employee who made the allegations, the payment shall
be made by the employer of the employee or by the caucus of
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the elected official against whom the allegations were made.
(2) Nothing in this section shall be construed to
prohibit the employee or elected official from making payment
from the employee's or elected official's personal funds.
(b) Personal liability of member.--If a payment is made from
an account of a legislative agency under subsection (a)
resulting from a complaint made against an elected official, the
elected official shall reimburse the account for the amount of
the award or settlement and shall reimburse the office for any
legal fees paid by the office on behalf of the member under
section 2121 (relating to legal assistance) if:
(1) a completed investigation by the office finds that
the complaint is credible;
(2) the hearing officer's decision finds that a
violation of section 2104 or 2105 occurred; or
(3) a civil action filed under section 2114 (relating to
election of action) results in the finding of a violation, or
an admission of a violation under section 2104 or 2105.
§ 2126. Reports.
(a) Legislative agencies.--Not later than 60 days after the
end of each calendar year, each legislative agency shall publish
on its publicly accessible Internet website a report identifying
the amount of each award or settlement made by the legislative
agency during the previous year under section 2125 (relating to
payment of awards and settlements).
(b) Office.--Not later than 180 days after the date of
enactment of this chapter and every two years thereafter, the
office shall submit a report to the General Assembly that
includes the following information for the reporting period:
(1) The number of complaints filed by employees with the
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office and the type of behavior alleged.
(2) Whether the complaints were filed against employees
or elected officials.
(3) The average length of time to resolve a complaint.
(4) The number of settlement agreements entered into by
the parties.
(5) The number of settlement agreements with
nondisclosure provisions.
(6) The total amount of awards or settlements paid to
employees.
(7) The number and types of remedial actions taken as a
result of the filing of complaints.
(8) How many employees filing complaints remained
employed by the legislative agency following resolution of
the complaint.
§ 2127. Safe harbor.
(a) Employees.--The rights, protections and benefits
afforded employees by this chapter shall be deemed to
supplement, and be in addition to, any right, protection or
benefit afforded by any other Federal, State or local law.
(b) Employers.--Notwithstanding subsection (a), an employer
shall not be required to establish and maintain separate
policies and procedures for the reporting of or response to a
complaint alleging the violation of section 2104 (relating to
prohibition) or 2105 (relating to retaliation) provided the
employer cooperates with the office and otherwise complies with
the employer's obligations under this chapter.
SUBCHAPTER D
PREVENTION AND RESPONSE TRAINING
Sec.
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2131. Development of training programs.
2132. Schedule.
§ 2131. Development of training programs.
(a) Duty of office and attendance.--The office shall develop
training programs concerning workplace sexual harassment
prevention and response. All employees and elected officials and
staff of the office shall attend the training programs.
(b) Contents of programs.--
(1) The training programs shall be based on the
principles of effective prevention and best practices in
consultation with rape crisis centers or other organizations
with experience in counseling and training regarding issues
of sexual harassment.
(2) The training program for employees, including staff
of the office, and elected officials shall include at least
the following elements:
(i) Bystander intervention and other strategies that
are found to be effective in workplace prevention.
(ii) The definition of sexual harassment and
retaliation and examples of the different acts and
behavior constituting sexual harassment.
(iii) The effects of sexual harassment on victims
and the workplace at large.
(iv) Examples of barriers to reporting incidences of
sexual harassment.
(v) The consequences of being found to be in
violation of section 2104 (relating to prohibition) or
2105 (relating to retaliation) or found to be in
violation of Federal law prohibiting sexual harassment.
(vi) A description of the policies and procedures
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developed by the office under section 2112(1) (relating
to duties), the procedures for contacting the office and
filing a complaint under this chapter and the option for
filing a civil action.
(vii) Referrals and resources, including rape crisis
centers and other counseling services, attorneys, the
United States Equal Employment Opportunity Commission and
other similar Federal and State agencies.
(3) The additional training program for staff of the
office shall include at least the following elements:
(i) The receipt of disclosure of sexual harassment,
including confidentiality and privacy considerations.
(ii) The provision of referrals and resources to
complaining employees and individuals against whom
complaints are filed, including to appropriate law
enforcement.
(iii) The policies and procedures developed by the
office under section 2112(1).
(iv) Trauma-informed systems of response,
investigation and resolution.
(v) The anticipated roles of employees and elected
officials in the complaint, investigation, hearing and
resolution process.
§ 2132. Schedule.
The office shall conduct the training programs developed
under section 2131 (relating to development of training
programs) as follows:
(1) For an elected official, within 30 days following
the election of the elected official and annually thereafter
at such dates and times as the director shall determine. It
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shall be a condition of being sworn in and seated that the
elected official shall have completed the training program
required by this paragraph.
(2) For a newly hired employee, within 30 days following
commencement of work by the employee and annually thereafter
at such dates and times as the director shall determine. It
shall be a condition of continued employment that an employee
complete the training program required by this paragraph.
(3) For staff of the office, prior to being assigned any
work related to a complaint filed under section 2114
(relating to complaint and hearing).
Section 2. The addition of 46 Pa.C.S. Ch. 21 shall apply to
conduct constituting sexual harassment which occurs or is
alleged to occur on or after the effective date of this section.
Section 3. This act shall take effect in 60 days.
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