Sex Assault in the Workplace

NDAs and the Speak Out Act: What Employees Should Know

Non-disclosure agreements have long been used to conceal workplace sexual misconduct. The federal Speak Out Act, signed into law in December 2022, is one of the most significant limitations on NDAs to emerge in recent years. It affects what employers can require employees to sign before a dispute arises and, indirectly, how employees respond to misconduct in the workplace.

What the Speak Out Act does

The Speak Out Act renders unenforceable any predispute non-disclosure or non-disparagement clause that would prevent an individual from speaking about conduct they reasonably believe constitutes sexual assault or sexual harassment. "Predispute" means the clause was signed before the individual raised a dispute or claim about the misconduct.

This limits the effect of blanket NDAs in employment agreements, arbitration agreements, and similar documents. If an employee signs a broad confidentiality clause when they are hired and later experiences sexual assault at work, the Speak Out Act prevents the employer from enforcing that clause to silence them.

What the Speak Out Act does not do

The Speak Out Act does not invalidate all NDAs. Post-dispute confidentiality provisions, such as those in settlement agreements signed after a claim is raised, remain enforceable. Employers and employees can still agree to keep settlement terms confidential.

The Speak Out Act also does not affect trade secret or general confidentiality obligations unrelated to sexual assault or harassment. It applies specifically to clauses that would suppress reporting or discussion of sexual misconduct.

New York state law

New York has its own restrictions on NDAs in sexual harassment and discrimination matters. State law generally prohibits confidentiality provisions in settlements unless the survivor affirmatively requests them, and it requires a 21-day review period and a seven-day revocation period before such provisions become effective. These provisions apply broadly to discrimination and harassment claims, not only sexual misconduct.

New Jersey law

New Jersey similarly limits the enforceability of NDAs in discrimination and harassment cases. Under a 2019 amendment to the New Jersey Law Against Discrimination, provisions that have the purpose or effect of concealing the details of a claim of discrimination, retaliation, or harassment are unenforceable against the employee.

What this means in practice

Employees who have signed employment agreements containing broad confidentiality clauses are not necessarily bound by those clauses when it comes to sexual assault or harassment. Before disclosing sensitive information, employees should consult counsel to confirm the scope of the applicable protections and avoid inadvertently waiving other rights.

Employers structuring severance and settlement agreements should be aware that overbroad confidentiality provisions in these matters can be unenforceable or, worse, expose the employer to claims that it attempted to suppress reports of unlawful conduct.

At John J. Zidziunas & Associates, LLC, our employment lawyers represent workers subjected to sexual assault and harassment across New York and New Jersey. To discuss your situation confidentially, call us at (212) 516-1868 or contact us here. We represent employees on a contingency fee basis with free consultations.

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