***UPDATE: On December 7, 2022, President Biden signed the Speak Out Act into law.  The law takes effect immediately.***

In a bipartisan 315-109 vote, the U.S. House of Representatives has approved a bill that would render pre-dispute nondisclosure and nondisparagement clauses judicially unenforceable with respect to sexual assault or sexual harassment disputes.  The bill previously passed the Senate in September of this year and now goes before President Joe Biden for consideration.

The bill, termed the “Speak Out Act,” provides:

With respect to a sexual assault dispute or sexual harassment dispute, no nondisclosure clause or nondisparagement clause agreed to before the dispute arises shall be judicially enforceable in instances in which conduct is alleged to have violated Federal, Tribal, or State law.

For purposes of the bill, a “nondisclosure clause” is defined as “a provision in a contract or agreement that requires the parties to the contract or agreement not to disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the terms and conditions of the contract or agreement.”  A “nondisparagement clause” is defined as “a provision in a contract or agreement that requires 1 or more parties to the contract or agreement not to make a negative statement about another party that relates to the contract, agreement, claim, or case.”

The bill expressly limits any preemptory impact on state or local law, stating that nothing in the bill “shall prohibit a State or locality from enforcing a provision of State law governing nondisclosure or nondisparagement clauses that is at least as protective of the right of an individual to speak freely, as provided by this Act.”  This language is likely driven by the numerous laws that have been enacted in a variety of localities – including New York, Oregon and Washington – limiting or placing hurdles around nondisclosure and confidentiality provisions in the context of sexual harassment claims.  The current bill does, however, note that it shall not prohibit an employer and an employee from “protecting trade secrets or proprietary information.”

We will continue to report on developments relating to this bill.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Evandro Gigante Evandro Gigante

Evandro is the go-to employment litigator and counselor when clients face their most challenging, bet the reputation claims, or want to develop policies and practices that mitigate legal risk. As an award-winning partner in the Labor & Employment Law Department, member of the…

Evandro is the go-to employment litigator and counselor when clients face their most challenging, bet the reputation claims, or want to develop policies and practices that mitigate legal risk. As an award-winning partner in the Labor & Employment Law Department, member of the Employment Litigation group, and co-head of the Counseling, Training & Pay Equity group, he represents clients on a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. In addition, Evandro handles restrictive covenant matters, including non-compete, non-solicitation and trade secret disputes. Evandro also counsels employers through the most sensitive employment issues, including matters involving employer diversity, equity and inclusion initiatives.

With a focus on discrimination and harassment claims, Evandro has extensive experience defending clients before federal and state courts. He tries cases before juries and arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions. Evandro often draws on his extensive litigation experience to help clients avoid the courtroom by effectuating positive change in the workplace through impactful anti-discrimination and harassment training, as well as robust employment policies.

Working in a wide range of industries, Evandro has experience representing clients in professional services, including law firms, financial services, including private equity and hedge funds, higher education, sports, media, retail, and others. Evandro also advises charter schools and other not-for-profit organizations on labor and employment matters on a pro bono basis.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.