Virginia Speak Out Act (7/1/23)

The governor has approved House Bill 1895, which prohibits employers from requiring an employee or prospective employee from executing or renewing a "nondisclosure or confidentiality agreement, including any provision relating to non-disparagement, that has the purpose or effect of concealing the details relating to a claim of sexual harassment … as a condition of employment." Any such provision is considered void and unenforceable.

This bill amends Virginia Code § 40.1-28.01, which already prohibited nondisclosure and confidentiality agreements relating to claims of sexual assault. The amendment now also prohibits non-disparagement provisions relating to claims of sexual assault and expands these prohibited agreements from claims of sexual assault to claims of sexual harassment.

Virginia law defines sexual harassment as any "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment."

Unlike the federal Speak Out Act, which President Biden signed into law in December 2022, the Virginia law does not apply to severance agreements or other post-termination agreements. Nevertheless, this new Virginia law likely applies to blanket confidentiality and non-disparagement agreements that employees may be required to enter into at the onset of employment or as employers update their policies. To the extent any of these provisions are in any of an employer's pre-employment agreements, they should revise them with a carveout for claims of sexual harassment. The law will take effect July 1.

Read the article:
Virginia Passes a Handful of New Employment Laws
Littler via SHRM | Apr 2023

Effective date: 7/1/23
Text of the measure.

Additional Law Firm Articles

To make matters more complicated, the National Labor Relations Board (NLRB) recently issued a significant opinion that also must be considered. The NLRB held that it is a violation of a covered employee's rights under the National Labor Relations Act (NLRA) when a severance agreement contains provisions such as a nondisparagement or nondisclosure provision that restricts current/former employees' right to speak out about their terms and conditions of employment. The NLRA protects most private sector employees regardless of whether a union is present in the workplace and generally applies to employees under the supervisory level. Current and former employees have a right to communicate so long as the communication is not so disloyal, reckless, or maliciously untrue such that it loses protection of the Act.
Virginia Employment Law Update: Important Changes Effective July 1, 2023
Ford Harrison | Jun 2023

Importantly, the amended law applies to agreements that are entered into "as a condition of employment."  Though this language may be subject to judicial interpretation, it does not appear to restrict the use of confidentiality or non-disparagement clauses in severance agreements related to the termination of an employee's employment or litigation settlement agreements because such agreements are not typically entered into as a condition of employment.
Virginia, Too – Increased Restrictions on Employee Confidentiality Provisions Related to Sexual Harassment Claims
Hunton | May 2023

Virginia Expands Nondisclosure Agreement Law to Include Sexual Harassment Claims
Williams Mullen | May 2023

Virginia further limits confidentiality and non-disparagement agreements and restricts the use of employee social security numbers
Reed Smith | Apr 2023