A new Act of Congress titled the “Speak Out Act” recently passed and was signed by President Biden on December 6th, 2022…
Spurred on by the #MeToo Movement, this bill attempts to remove barriers to the enforcement of anti-sexual harassment and sexual assault laws in the workplace. Many victims of these unlawful acts have signed nondisclosure or non-disparagement agreements upon being hired—likely long before they experienced misconduct.
These clauses in employment agreements have become more common in recent years. What used to be reserved for top-level executives has grown to encompass ordinary employees. Unfortunately, nondisclosure agreements (NDA) and non-disparagement agreements can hinder victims of sexual misconduct by preventing them from speaking out publicly.
In fact, some NDAs and non-disparagement clauses are so broad that they have prevented victims and witnesses from speaking to their loved ones, therapists, or clergy. This means victims and witnesses can’t warn or discuss the issue with others. Their forced silence may allow unlawful behavior to continue.
The Speak Out Act will help create an atmosphere of accountability in the workplace by nullifying most NDAs and non-disparagement clauses an employee may have signed prior to the sexual harassment or assault. It does not, however, prevent the signing of an NDA or non-disparagement agreement after misconduct has already occurred; furthermore, this law does not apply to agreements signed in legal settlements or agreements involving other types of alleged discrimination.
PBS reports that, approximately one third of all American workers have signed an NDA that restricts them from speaking out about work related matters.
What should employers know?
If your company routinely asks new hires to sign non-disparagement agreements, be aware that these agreements will not be enforced in cases involving sexual harassment or assault allegations; however, these agreements remain effective against discrimination and other workplace misconduct. You may still seek an NDA or non-disparagement agreement after alleged misconduct has occurred or as the result of a settlement.