Why ‘Speaking Up’ Is Like A Whisper – Discrimination, Disability, Sexual Harassment

On December 7, 2022, Congress passed the “Speak Out Act” (the “Act”). It codifies federal restrictions on the types of information that employers are permitted to include in confidentiality or non-defamation clauses. Specifically, under the Act, employers must require employees to comply with pre-dispute agreements that contain confidentiality or non-defamation clauses that have the effect of silencing employees with respect to allegations of sexual harassment or sexual assault. It is currently prohibited to require a document to be signed. However, the law, while intended to prevent “Me Too” situations, explicitly provides for confidentiality obligations that do not prohibit employees from speaking out against sexual harassment or sexual assault. and demand no disrespect clauses.

At first glance, the law may seem like an unnecessary measure. Policies in many employee handbooks require employees to report sexual harassment/abuse and prohibit retaliation for reporting. Such a mandatory reporting policy would be ambiguous if you were required to sign a similar agreement prohibiting you from discussing the topic. sexual assault.

Under the Act, such agreements now violate federal law. Importantly, this does not mean that employee confidentiality or non-defamation agreements are prohibited. On the contrary, the Act makes clear that such agreements are permitted and are an important tool for protecting a company’s trade secrets and proprietary information. It cannot be used to suppress speech related to sexual harassment or sexual assault allegations. (Note: The law does not say “confidential information,” it says “trade secret or proprietary information.”)

Also worth noting is that the law does not apply. post-conflictAgreements, such as settlement agreements, entered into after an employee files a sexual assault or sexual harassment allegation. For example, the law does not prohibit an employee from entering into a settlement agreement with an employer after the employee registers a sexual harassment complaint with the company’s human resources department.

Finally, the Act does not prohibit federal, state, or local laws regulating confidentiality and non-defamation clauses so long as they are as protective or more protective of the law. This means that the more protective measures for books in California, New Jersey, New York, Oregon, and Virginia remain intact.

While off to a good start, the law falls short in several respects. Specifically, the Act does not penalize employers for including non-disparagement or non-disclosure clauses in employee contracts, nor does it prohibit employees from discussing or making allegations of sexual harassment or sexual assault. nor does it require such a contract to expressly state that it does not prohibit Instead, the law’s ramifications are that the breaching agreement becomes unenforceable when attempting to suppress speech about workplace sexual harassment or sexual assault. It also means that the issue must be prosecuted to have any applicability, and victims of sexual harassment and sexual assault can file lawsuits over the enforceability of confidentiality agreements, while I need to sue for sexual harassment/assault allegations. So, without further clarification, employees subject to non-disclosure agreements may be confused and silent about what they can and cannot say when allegations of sexual harassment are involved. may protect

Employer Points: The Speak Out Act takes effect December 7, 2022 and applies to “claims filed under federal, state, or tribal law” after that date. Employers should review current employee confidentiality agreements and revise them before having employees sign them in the future to ensure exceptions to confidentiality and defamation clauses related to allegations of sexual assault or sexual harassment. must be included.

And since most employers are (or should be) updating their employee policy and contract templates at the end of the year, they’re reviewing more restrictive state laws to ensure that all policies and contracts require It is recommended to make sure that additional features are included. .

The content of this article is intended to provide a general guide on the subject. You should seek professional advice for your particular situation.