Late last year President Biden signed the Speak Out Act into law. This law forbids employers from
including sexual harassment and sexual abuse claims in Non-Disclosure Agreements. What many may
not know is that the Speak Out bill that passed in Congress was a very different version than what was
submitted originally.
The original Speak Out bill mirrored the Silenced No More laws that are currently in place in fourteen
(14) states, with two more considering similar bills. So why is this important information for companies
to know? Take the Washington Silence No More Act as an example, it includes claims of discrimination,
harassment, and wage and hour violations. Washington’s law protects employee’s rights to
communicate these concerns or complaints based on their “reasonable belief” that there is a violation
by the employer. First, the level of “reasonable belief” is not well defined and is a very subjective
measure. Second, it potentially closes the door for employers to settle situations in-house when possible
if employees feel that this law has fully opened the door for litigation. The laws in other states are very
similar and some were based off Washington’s Act.
The original Speak Out bill was similar as well, including language that covered discrimination against
other Title VII characteristics including race, national origin, and age. While the bill was stripped back to
only cover sexual harassment and sexual assault, Biden has stated that he will push for these additional
protections. So, what does this really mean for employers? You need to review your Non-Disclosure
Agreements to ensure that they no longer include sexual harassment and/or sexual abuse. But in
addition to that, you need to consider what other steps you may need to take if a more encompassing
law is passed. Keep in mind the Speak Out Act only prohibits pre-incident agreements, meaning NDA’s or
similar agreements. It does not prohibit an employer from offering, or an employee from accepting, a
post-incident agreement of confidentiality.
