December 07, 2022

Speak Out Act Update – It’s the Law!

As anticipated in the November 14th article, President Biden signed the Speak Out Act on December 7, 2022. It took effect immediately and applies to a “claim that is filed under Federal, State, or Tribal law on or after the date of enactment of this Act.”

The law reads, “With respect to a sexual assault dispute or sexual
harassment dispute, no nondisclosure clause or nondisparagement clause
agreed to before the dispute arises shall be judicially enforceable in
instances in which conduct is alleged to have violated Federal, Tribal,
or State law.”

Practical Application. This concept is not new. The EEOC has considered testimony (see Section III) that use of certain non-disclosure/non-disparagement agreements may have a “chilling” effect upon employees’ ability and right to file a charge or claim. State legislatures have also taken action prohibited certain, related agreement. Now, however, it is federal law. So, if you require candidates as a condition of employment or current employees to sign an employment agreement that contains a non-disclosure or non-disparagement clause, review it with your employment counsel.

Stay tuned. As also mentioned in the previous article, this has been touted as step one.  It is expected that future legislation will broaden this restriction to disputes related to discrimination based on race, unfair labor practices, and more.