Senate Advances Bill to Ban Nondisclosure Agreements in Sexual-Harassment Cases

Leah Shepherd By Leah Shepherd September 19, 2022
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​The U.S. Senate Judiciary Committee on Sept. 15 unanimously approved a bill that would invalidate nondisclosure agreements (NDAs) designed to keep employees from discussing instances of sexual harassment and sexual assault.

The bill, known as the SPEAK Out Act (S.4524), is similar to laws passed in California, Illinois, New Jersey and New York. The purpose is to allow victims of sexual harassment and sexual assault to speak publicly about it in order to stop perpetrators from continuing to harm people. We've rounded up a selection of relevant articles from SHRM Online and other trusted news sources.

Bipartisan Support

The Senate Judiciary Committee advanced the bill by a voice vote, after the House Judiciary Committee advanced a companion bill in July. Since its introduction, the bill has had bipartisan, bicameral support, a rare feat for pro-worker legislation.

Conservative think tank the Heritage Foundation is opposing the bill on constitutional grounds and calling it "duplicative."

(Bloomberg Law)

Common in Private Sector

The broad support for the bill is an acknowledgment that silencing victims perpetuates sexual violence and harassment, according to Tad Thomas, president of the nonprofit American Association for Justice. An estimated one-third of private-sector workers have signed agreements not to disclose details of their employment or disparage their employers.

(Reuters)

More States Prohibit NDAs

Many employers require employees to sign NDAs and nondisparagement clauses during hiring, in severance agreements and in legal settlements. But they need to be careful that these clauses don't violate new state laws. Maine, Oregon and Washington are the latest states to restrict how employers can use those types of contracts.

(SHRM Online)

Protecting Trade Secrets

One of the most common situations in which companies use NDAs is when employees have access to confidential information, including trade secrets, proprietary processes, client lists, marketing strategies, and other valuable or sensitive information.

(Thomson Reuters Legal)

Preventing Harassment

Federal law provides employers with a defense against liability if they take proactive steps to prevent and correct sexual harassment and other forms of unlawful workplace harassment. Companies should have robust policies prohibiting sexual and gender-based harassment, with clear examples of the types of prohibited behaviors. These policies should be reviewed with new employees as part of onboarding, as well as periodically during employment.

(SHRM Online)

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