On December 7, 2022, President Biden signed the “Speak Out Act.” (“Speak Out”).  “Speak Out” voids in as unenforceable any non-disclosure or non-disparagement agreement related to workplace sexual harassment and sexual assault.  The Act bars employers from enforcing such agreements with former or current employees, independent contractors, providers of goods and services, and consumers that contain a non-disclosure and non-disparagement provision prohibiting any discussion related to sexual assault or harassment.

“Speak out” is squarely aimed at preventing situations where alleged victims of sexual harassment or assault were limited in their ability to come forward publicly with their allegations and lines up with other federal and state legislative efforts to limit the use and/or enforcement of confidentiality and non-disparagement clauses in settlement agreements.

California passed the Silenced No More Act in 2021; a law that bars enforcement of non-disclosure and non-disparagement provisions in employment-related settlement agreements related to all claims of harassment, discrimination, and retaliation.

Employers should review their employment agreements, confidentiality agreements, arbitration agreements, and employee handbooks and policies to ensure they are in compliance with the Speak Out Act, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, the Silenced No More Act (in California), as well as applicable state and local laws.

Author: Pat Moody with Barsamian & Moody