President Biden is ready to sign a bipartisan bill ending certain sexual harassment NDAs


Democrats and Republicans don’t often see eye to eye on new employment legislation. Except, it seems, when Gretchen Carlson spearheads the effort to get these new bills passed.

In March, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 into law. That law allows victims of sexual assault or sexual harassment to litigate their claims in court even if they signed an arbitration agreement.

Ms. Carlson was a vocal advocate for that measure.

But she didn’t stop there.

Instead, Ms. Carlson has spent the past several months championing the passage of the Speak Out Act, which the Senate passed on September 29, 2002.

And yesterday, the House did its part by voting in favor of the measure 315-109.

The Speak Out Act will void any nondisclosure and nondisparagement clauses found in pre-dispute contracts or agreements concerning conduct alleged to constitute sexual harassment or sexual assault.

The original legislation voided similar provisions found in pre-lawsuit contracts or agreements. So, the current, revised version has less bite to it. Plus, the bill does not cover any other types of employment claims or impact any agreement to protect trade secrets or other confidential information.

In practice, here’s how it will work.

Suppose an employer has a reduction in force and offers a severance package to departing employees. The severance agreements contain nondisclosure and nondisparagement clauses. Any employee who has not previously initiated a dispute about sexual harassment or assault who signs the agreement is free to discuss any allegations of sexual harassment with others or file a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission alleging sexual harassment. (An employee could still file with the EEOC without the Speak Out Act. But they would probably lose if they never complained about sexual harassment at work first.) Since the agreement will presumably include a general release, the employee won’t be able to recover any money.

Now, let’s change the facts a bit.

Suppose now that one of the employees in the first example does not sign the severance agreement. Instead, they file an EEOC Charge alleging sexual harassment. If the employer and employee subsequently settle the Charge or a subsequent lawsuit, the Speak Out Act would not allow the employee to discuss their claims with others. Why? Because the parties would have entered into the NDA after the dispute arose.

Just remember that state and local laws may vary on this issue.

Basically, the Speak Out Act is targeted at initial employment agreements with nondisclosure and confidentiality provisions. But how many non-executive-level, at-will employees actually sign those?

President Biden is expected to sign the Speak Out Act soon.

On paper and in the media, it sounds game-changing.

I question its practical impact on the workplace.

“Doing What’s Right – Not Just What’s Legal”
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