In this episode of the Employee Survival Guide, Mark explores the recently enacted federal ban on predispute nondisclosure agreements regarding sexual harassment and sexual assault in the workplace. The Speak Out Act bans or voids any and all predispute agreements from prohibiting anyone for complaining about sexual assault and sexual harassment. These agreements are not to be confused with severance, settlement agreements- so called postdispute nondisclosure agreements, which the law does not apply to. Listen to hear Mark explain the reality of the federal ban and how employers have attempted to get around these federal and state bans on nondisclosure of sexual harassment and sexual assault claims by victoms. Mark anticipates the problem is not going to go away.
Speak Out Act.
https://www.natlawreview.com/article/new-speak-out-act-voids-predispute-nondisclosure-and-nondisparagement-provisions
ban on forced arbitration
National Women’s Law Center, April 2020 Fact Sheet: Limiting Nondisclosure and Nondisparagement Agreements That Silence Workers: Policy Recommendations.
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Transcript:
Unknown:
Hey, it’s Mark here and welcome to the next edition of the Employee Survival Guide where I tell you as always, what your employer does definitely not want you to know about a lot more. Hey, it’s mark here and I want to talk to you about the speakout Act, a federal ban on pre dispute confidentiality agreements regarding sexual harassment and sexual assault victims. On December 7 2022, President Biden signed into law the speakout Act. The Act seeks quote, to limit the judicial enforceability of pre dispute, non disclosure non disparagement contract clauses related to disputes involving sexual assault and sexual harassment and quote, according to the Congressional findings set forth in the act, quote, sexual harassment and assault remain pervasive in the workplace and throughout civic society, affecting millions of Americans. 81% of women and 43% of men have experienced some form of sexual harassment or assault throughout their lifetime. Sexual harassment in the workplace forces many when to leave their occupation or industry or pass up opportunities for advancement. In order to combat sexual harassment and assault. It is essential that victims and survivors have the freedom to report publicly and publicly disclosed their abuse. Prohibiting this non prohibiting non disclosure and non disparagement clauses will empower survivors to come forward, hold perpetrators accountable for abuse, improve transparency around illegal conduct, and enable the pursuit of justice and make workplaces safer and more productive for everyone and quote, according according to one commentator, and I’ll include the links in the show notes below. Quote, The Law purports to allow survivors of workplace sexual assault and harassment to speak out about their experiences, notwithstanding the existence of non disclosure NDAs, or non disparagement provisions in pre dispute agreements between employers and their former current and prospective employees. Although the law responds to a prominent debate about the proprietary knowledge of non disclosure and non disparagement provisions, the speakout act limitation to pre dispute agreements means that it is unlikely to apply to many of the settlements reached between employees and employers and sexual assault and sexual harassment cases and quote, there’s a lot said there in that commentary and I need to appraise you of what a nondisclosure agreement is briefly, and what a non disparagement clause is, in essence, a non disclosure agreement is basically what it sounds like, do not talk about anything that you discover while you’re engaged with your employer or risk of being sued. And then the non disparagement essentially is don’t say anything that will harm the reputation of the company by any means of social media or verbal or in writing. Now, I also need to bring you give you an understanding of what pre dispute and post dispute non disclosure agreements are, because they are very different. Congress only chose to limit the non disclosure in the pre dispute setting and not the post dispute meaning that if you had a ongoing lawsuit, etc, the the SpeakUp Act would not apply to that eventual settlement. So the speakout act bans or voids any and all pre dispute agreements from prohibiting anyone from complaining about sexual assault and sexual harassment. These agreements are not to be confused with severance and settlement agreements, the so called post dispute non disclosure agreements, which the law does not apply. Some advocates are seeking to completely ban all proposed disputes, confidentiality agreements, namely Gretchen Carlson’s advocacy group called lift our voices. Miss Carlson argues that and her group argue that wants to this is one step in the right direction to speak out act, following the federal ban on forced arbitration in sexual harassment cases signed by into law by President Biden. And I also have links to that as well in the show notes. Actually, I agree with Miss Carlson regarding this issue. It is one step direction in you know, that’s how our democracy works. We just take one step and then we all get used to it and then we take the next step and ban the next aspect of it. It’s coming It’s it’ll just take some time in you have to be be patient. Opponents of the speakout act speak up act argue that the very essence of an employer employees leverage when The employer has been taken away by the statute, forcing some victims to continue to litigate their cases or worse remaining silent. A situation the SpeakUp act sought to finally remedy prior to the passage of the SpeakUp act, employees and their employer attorneys use the threat of public disclosure as leverage to force employers to pay settlements prior to the lawsuit being filed. This is uncharted territory. And I hope Congress and the President were correct that the SpeakUp Act would act as a deterrent at anyone seeking to violate the federal ban on pre dispute confidentiality agreements related to sexual harassment sexual assault. Now, also after the metoo event, you saw many states also enact state laws to deal with the issue that the public was complaining about. And then since this is now back to the time period of the Weinstein issue when it came out, the one person in the Weinstein case actually violated her non competing or her nondisclosure agreement and was sued by Weinstein for breach of contract but the I don’t know exactly what the history of that case went. But we know the criminal the criminal result of that by Mr. Weinstein being convicted in New York and then later in California. According to one combinate data, and I’ll put the, again the source in the show notes, quote, since me, two went viral in October 2017 11. states have enacted legislation to prohibit employers from requiring employee individuals to sign pre dispute NDAs that prevent a worker from disclosing harassment, discrimination and sexual assault among those California, Illinois, Maryland, New Jersey, New Mexico, and New York, Oregon, Tennessee, Vermont and Virginia. And then finally Washington State and quote the these statutes aren’t effective because employers seek to coerce the very thing that statutes in the SpeakUp act seek to remedy and as the covering up and confidentiality of sexual harassment sexual assault cases. Simply I am aware that employers This is based upon my own practice and experience. employers seek to bypass the statutes by illegally conditioning part of the settlement compensation based on employees signing the allege, quote, voluntary elected confidentiality agreement, in particular New York State has this. Employers still are required to give the standard 21 days or whatever period is required to consider the voluntary confidentiality agreement before they sign it with the whole process is a farce. And employers know this. What employers know is that they can dangle the settlement compensation in front of the employee and coerce employees who are victimized by the abuse of employment practice into signing confidentiality agreements, making them Volland involuntary in a manner of speaking. In recently, I had a situation where I confronted an opposing counsel based in New York, where I employee worked in New York, but also work remotely in Connecticut. And we were dealing with a settlement. And I confronted the attorney that why she wasn’t using the New York statute. And she sought to ignore my comments into actually became critical of in made accusations to me. But she knew exactly what I was confronting was the aspect that was she was trying to Enron and not use the New York law or thinks Connecticut law didn’t have a similar level of treatment. So there’s always going to be efforts by employers to get around the issue. This is not going to go away, folks, in terms of the problem here is that the you can by law, state and federal tell employers, they can’t do something, they’re going to still go ahead and do it. Because that’s the power of the disclosure element of settlements. That and I agree with the opponents of the statute speak up back, this very leverage that employees have. At the same time, they want to report the bad behavior, they can do that in the form of, you know, filing the administrative complaints in the full, lengthy narrative about all the bad acts, and confronting the individual and have the employer deal with that individual and have the employer pay the client, the employee, the victim, you know, money at the level of like a judgment from a jury. I’m not kidding, this actually does happen. I can tell you I’m involved in in cases where this does happen. And the employers definitely want to keep these things quiet. And I want you to be aware that that’s going on and won’t go away for some time. So as we look forward to the future, the act and the state laws The SpeakUp act now allows employees to go to court and challenge the harassers with impunity. It will take some many years to see if Congress was correct, that statute would act as a deterrent to bad behavior. It is still too early to tell one way or another. My prediction is that it will dramatically or substantially, to some degree reduce the overall number of sexual harassment incidents in the workplace. But I’m doubtful, it will substantially reduce sexual assaults. For example, sexual assault is a civil claim that exists in every state, and it’s also a criminal claim. But yet both continues to occur. That’s my point. At best to speak up act successfully kills the legal defense used by employers that the agent alleged breach of the nondisclosure agreement by the employee because she went out and told about this nefarious bad acts of sexual activity, sexual assault and sexual harassment, again, key the queue and the Weinstein issue in that whole debacle. And these agreements previously used to silence victims of sexual harassment. So now the defense is being removed by the statute and state statutes as well. But again, I sound the alarm that employers will seek to condition settlement compensation, as I said before, to get around the state laws and federal laws requiring voluntary confidentiality agreements, like the one in New York state, so it’s not going to go away, I will continue to report on it and tell you what’s happening on the front lines, because that’s where I’m at. So hopefully, you found this issue informative. Overall, we are taking steps in the positive direction, we are eroding the so called default management practices that employers foist upon us to deal with because they can’t, you know, deal manage their own employees. I mean, the very, I love, the very idea of me as an employment attorney existing is because management cannot control their employees. I mean, I, my entire law practices geared towards policing employers for 26 years. So I’m very busy, have been lots and lots of millions of dollars exchanged hands every year, through my office loan. And there are our numbers of employment lawyers, like myself around the country, I’m trying to pick a point that employers are not doing a great job at protecting you, the employee, and I need you to wake up about that. It’s not a joke, folks. It’s gonna take time to remedy this, but acts like the SpeakUp act, acts like the force ban on Arbitration Act and the future upcoming federal trade commission ban on non competes, are taking ginormous steps towards resolving the inequality between employers and employees and their bargaining and negotiating power. And I have to say that this is really history in the making, if you want to look at history over a period of time, in terms of employee employer relations, this is gigantic. So it’s a pretty significant time. So again, I’m just doing my job. And I just bring you this information every week, every day, and hope you like it. And look forward to more. Until next time, I’ll talk to you soon. Thank you. If you’d like the employee Survival Guide, I’d really encourage you to leave a review. We try really hard to produce information to you that’s informative, that’s timely that you can actually use and solve problems on your own and at your employment. So if you like to leave a review anywhere you listen to our podcasts, please do so. And leave five stars because anything less than five is really not as good, right? I’ll keep it up. I’ll keep the standards up. I’ll keep the information flowing out you. If you’d like to send me an email and asked me a question. I’ll actually review it and post it on there. You can send it to mcarey at capclaw.com That’s capclaw.com