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NYC Litigation Blog

Monday, September 10, 2018

Workplace Confidentiality Agreements Criticized During #MeToo Movement

Can Private Employers in New York Require Sexual Harassment Victims Sign an NDA?

The #MeToo movement has changed the way that our nation views sexual harassment. Women who were once afraid to come forward are now empowered to call out their harassers, and laws that have long favored protecting the harasser are being reexamined. Confidentiality agreements, which often required employees agree not to disclose instances of sexual harassment in order to get or keep their job, have come under close scrutiny. Several states, including New York, are reforming confidentiality laws to better protect the victims of employment discrimination and workplace harassment.

New Restrictions Coming for Confidentiality Agreements

In response to the #MeToo movement and shifting public opinion, several state lawmakers have introduced bills to restrict confidentiality agreements. Lawmakers in 16 states, including New York, have proposed limiting the use of nondisclosure agreements in sexual harassment cases by private employers. California lawmakers recently developed two bills, one of which would prohibit private employers from requiring employees to sign nondisclosure agreements related to sexual harassment when signing is a condition to obtaining or keeping one’s job.

Workplace harassment victims state that having to sign NDAs prevents them from assisting other women. Keeping so much secret prevents other women from knowing the true rates of sexual harassment, and prohibits victims from sharing their stories. Lawmakers and lawyers suggest that limitations on sexual harassment NDAs could have unintended consequences on employment contracts and related matters.

In New York, one new law states that settlements for sexual harassment cannot include a confidentiality provision, unless desired by the complainant. Several other states have taken it a step further to limit NDAs in employment contracts. Some worry that elimination of NDAs could, however, reduce the employer’s incentive to settle a case.

For now, New York employers should remain abreast of legal developments. Employers must take steps to ensure their employment contracts comply with the most recent laws. New York City employees and employers alike should seek the assistance of an employment discrimination lawyer for answers to their questions pertaining to workplace harassment. Contact us today.



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