Posts Tagged with: Nondisclosure Agreements

  Back to top
Silenced No More Conversation Bubbles Image
27 December 2022

Silenced No More: New Law Protects Employees Wh...

Taking another step forward in the #MeToo movement, Congress recently passed a new law—the Speak Out Act—banning employers nationwide from using blanket non-disclosure or non-disparagement agreements or policies against employees who come forward with allegations of sexual harassment or assault.  However, the law does not ban employers from entering into standard confidentiality agreements with current […]

Email Disclaimer 

Please be advised that contacting Miller Johnson or one of its attorneys by email does not constitute establishing an attorney-client relationship or otherwise confidential relationship between you and the Firm. Please do not give us any information you regard as confidential until a formal attorney-client relationship has been established. Any information you give to us before establishing an attorney-client relationship will not be regarded as privileged or confidential. Do you wish to proceed?

Cancel I agree

Publication Signup 

"*" indicates required fields

To receive firm communications, please select from the list of topics, complete your contact information, and Sign Up below.
Hidden
Select Service*
This field is for validation purposes and should be left unchanged.

Taking another step forward in the #MeToo movement, Congress recently passed a new law—the Speak Out Act—banning employers nationwide from using blanket non-disclosure or non-disparagement agreements or policies against employees who come forward with allegations of sexual harassment or assault.  However, the law does not ban employers from entering into standard confidentiality agreements with current or former employees upon settlement of such claims.

This new law makes it all the more imperative for employers to maintain healthy workplace cultures that are free of sexual harassment and policies that preserve safe spaces for employees.

Background

The Speak Out Act passed Congress in November by a strong and bipartisan majority—the vote in the House of Representatives was 315 to 109—illustrating the growing consensus on #MeToo-related matters.  President Biden signed the bill into law on December 7, 2022.

The biggest single change the law makes is rendering unenforceable pre-dispute nondisclosure agreements (NDAs) and non-disparagement agreements that prohibit individuals from disclosing sexual harassment or sexual assault on the job.  The law does not define “dispute,” but it seems clear that once an allegation of sexual harassment or assault has been made, a “dispute” has arisen—whether or not the allegation comes in a lawsuit.  In addition, the law is limited to disputes regarding conduct that is alleged to have violated federal, state, or tribal law.

NDAs are broadly defined under the law as any contractual provision that requires a party to not disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the terms and conditions of the contract or agreement.  The law defines non-disparagement agreements as contractual provisions that require a party not to make a negative statement about another party that relates to the contract, claim, or case.

Taken together, this means that many common contractual provisions or policies used by employers—such as clauses typically found in offer letters, employment agreements, and confidentiality agreements—are now void with respect to sexual harassment and assault allegations.  Importantly, however, the Speak Out Act does not apply to agreements entered into after a dispute has arisen, such as confidentiality provisions commonly included in settlement agreements for sexual harassment or assault allegations.  But be careful: some state or local laws may restrict such provisions (California, for example), and the Speak Out Act explicitly allows states to be more restrictive.

What This Means for Employers:

  • Employers should consider using passage of the Speak Out Act as an opportunity to review your policies concerning sexual harassment and reporting, your communication and training of those policies, and perform an honest assessment of the culture within your workplace, and make any necessary changes.
  • Review your pre-hire and standard employment agreements, including offer letters and confidentiality and separation agreements, to ensure none restrict the types of disclosures protected by the Speak Out Act, as well as your employee handbook. If you use independent contractors as part of your workforce, check those agreements for compliance as well.
  • When sexual harassment allegations do arise, make sure HR, management, and in-house counsel are aware of the limitations of the new law.

If you have any questions, please reach out to the author or another employment attorney at Miller Johnson.

Questions?
Contact the author Brett Swearingen.