Employees have more freedom to discuss sexual harassment or assault

On December 7, 2022, President Biden signed the Speak Out Act (S. 4524), which invalidates any language in an agreement that prohibits individuals, including employees and independent contractors, from discussing potential future allegations of sexual harassment or assault. Some companies require workers to sign agreements that include nondisclosure or nondisparagement language. This language is usually intended to limit an employee’s ability to discuss certain topics or engage in speech that negatively impacts the company, but sometimes it has also been used to prevent discussions regarding sexual harassment or assault. The new law changes that.

Under the Speak Out Act, if an employee is required to sign an agreement containing nondisclosure or nondisparagement language, and later alleges they were subjected to sexual harassment or assault, the employee can’t be blocked from discussing those allegations. The new law grants this right immediately, for any claims filed in state or federal court on or after December 7, 2022.

Tips: Importantly, this law only applies to situations where the agreement is signed before the alleged sexual harassment or assault takes place. Under this new federal law, employers can continue to settle claims with nondisclosure and nondisparagement language after the fact, such as in the context of a separation agreement. However, some states provide additional protections for workers, which also affect agreements that take place after the occurrence of certain alleged events, such as harassment. These include California (Government Code Section 12964.5), Oregon (ORS 659A.370, with additional protections from SB 1586 (2022), which takes effect on January 1, 2023), and Washington (RCW 49.44.211). If you have questions about language in existing agreements, we recommend taking it to the attorney who drafted it for you. Other questions? Contact your Vigilant Law Group employment attorney.