As of November 16, 2022, both the House and the Senate have passed the Speak Out Act (“the Act”). This legislation now awaits President Biden’s signature. The White House has expressed its support of the Act, and we’re expecting the President to sign the Act soon, but no exact time frame has been provided. Once President Biden signs the Act, it’ll become effective immediately.
The Act’s bipartisan support has generated a great deal of excitement. Although this legislation is an important step, there are questions regarding its practicality in the workplace.
The Act’s goal is to limit the enforceability of nondisclosure and nondisparagement agreements that were entered into prior to a dispute involving sexual assault or sexual harassment. This means an employer can’t ask an employee to keep future claims of sexual harassment or assault confidential. Previously-signed nondisparagement agreements also would become unenforceable if they limit an employee’s ability to discuss potential disputes. The hope for this legislation is that survivors of workplace sexual assault or harassment feel empowered to speak out about their experience.
It’s important to note that the Act will apply only to agreements that are made prior to a dispute arising. Therefore, the Act does not limit the use of these provisions in settlement agreements, although in certain circumstances New York law already prohibits confidentiality in settlement if the surivivor hasn’t requested it.
From a best practice perspective, employers always should be mindful about provisions they ask their employees to agree to at the time of hiring and throughout their course of employment. If an employer typically utilizes employment contracts or confidentiality or nondisparagement policies, now is the time to revisit them to ensure compliance.
Moreover, it is critically important – and it’s the law in New York – to have policies and procedures in place to prevent sexual harassment and assault in the workplace. Employees are required to be trained annually on preventing sexual harassment.
Those who’ve experienced unwanted sexual acts in the workplace either now or in the past should consult legal counsel. The recently-effective New York Adult Survivors Act provides a one-year window for survivors of workplace and other sexual assault to seek justice. The Coppola Firm is here to guide you and help. Don’t hesitate to reach out at 716.839.9700.