212.627.8100On December 7, 2022, President Biden signed the Speak Out Act into law. The Speak Out Act aims to empower victims of workplace sexual assault and harassment by limiting enforcement of pre-dispute nondisclosure and nondisparagement clauses in employment contracts.
Under the Speak Out Act, employers may no longer enforce nondisclosure and nondisparagement clauses that were agreed to prior to a dispute. Employers will not be able to silence victims of workplace sexual assault and harassment before the victim is even given a chance to raise it as an issue or speak out about it publicly. The Speak Out Act covers contracts signed before its passing. All such agreements, signed pre-dispute, are now unenforceable with respect to disputes involving claims of sexual assault and harassment.
The law not only applies to lawsuits, but more broadly to disputes. Disputes can refer to lawsuits, charges filed at government agencies, or even just an employee raising an issue with their employer. The pre-dispute aspect means that employers will still be able to enforce nondisclosure and nondisparagement contracts that have been agreed to after the victim has had the opportunity to raise the issue and seek resolution, though some state laws, including New York’s, may limit employer’s ability to seek nondisclosure.
Critics of the Speak Out Act say it does not go far enough to empower survivors of workplace sexual assault and harassment. The law does not demand that employers make clear in any pre-dispute nondisclosure and nondisparagement agreement that such an agreement would not cover sexual assault and harassment. Nondisclosure and nondisparagement provisions are still permitted in post-dispute settlement agreements (with some state law limitations), allowing employers to silence victims in the case that the agreement is entered into post-dispute.