Victims of workplace sexual harassment and assault may no longer be bound by non-disclosure and non-disparagement agreements, which are referred to as NDAs. Employees who have signed NDAs as a general condition of employment may no longer be silenced by their agreements, according to the “Speak Out Act,” recently signed into law.
You must still be careful and understand how the law applies before speaking out. The law prohibits enforcement of NDAs if the agreement was made “before the dispute arises.” This means that the NDA you signed before experiencing harassment or assault may not bind you to silence.
Congress intended to release employees from blanket NDAs if they experienced harassment or assault after signing the NDA. That makes sense. The legal community, however, assumes that the phrasing will lead to much litigation about its meaning. It’s important to speak with an attorney if you’ve signed an NDA and before you speak out.
Under the law, language included in any nondisclosure agreement will be unenforceable if it requires an employee to keep allegations of sexual assault and harassment confidential. Similarly, any agreements containing non-disparagement language prohibiting an employee from discussing sexual assault and harassment will likewise be unenforceable.
The Speak Out Act does not otherwise prohibit employers from using and enforcing NDAs prohibiting the disclosure of the employer’s confidential and proprietary information, including trade secrets.
NDAs prohibiting the disclosure of sexual assault and harassment are still permitted in settlement agreements after a victim brings the claim. If you experienced harassment, made a claim and resolved the claim by signing a settlement agreement, you likely agreed to receive compensation for agreeing to stay quiet. A settlement agreement would typically include non-disclosure and non-disparagement provisions. Read your document carefully and seek further advice from a lawyer if you have questions.
Congress hopes that the law “will empower survivors to come forward, hold perpetrator accountable for abuse, improve transparency around illegal conduct, enable the pursuit of justice, and make workplaces safer and more productive for everyone.”
The attorneys at Potomac Legal Group have extensive experience representing employees alleging sexual assault and harassment. Our attorneys are also skilled at negotiating and advising clients regarding NDAs. If you suffered sexual assault or harassment in the workplace, it is crucial that you contact Potomac Legal Group as soon as possible to be aware of your rights and raise a sexual assault dispute.