ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Thursday, December 15, 2022

Speak Out Act Provides Some Protection Against Non-Disclosure Agreements

Kirsten_Gillibrand _official_photo _116th_CongressLast week, Congress passed and President Biden signed into law the Speak Out Act.  The Act is evidence that Congress can still pass meaningful legislation.  This one was introduced by New York Senator, Kirsten Gillibrand (right).  Co-sponsors included nine Democratic Senators, as well as  Republican Senators, Marsha Blackburn, John Cornyn, Lindsey Graham, Chuck Grassley, and Rob Portman.  The Act had unanimous support from Democrats, and Republicans in the House were pretty much evenly divided.  It passed the Senate by unanimous consent.

The key operational provision reads as follows:

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.

Keen readers will note that this Act is only a partial victory (but a victory nonetheless), as it only precludes the enforcement of nondisclosure or non-disparagement provisions entered into before the dispute arises from being introduced in connection with sexual assault or sexual harassment disputes.  

As Tom D'Agostino explains on, there are four ways in which the Act falls short.  First, employers can still enter into NDAs with employees after a dispute as begun and thus shield themselves somewhat from the public disclosure of misconduct.  The Act will not end the tradition of paying hush money to employees to get them to drop their claims.  Second, to the extent that pre-dispute NDAs purported to prohibit the reporting of criminal activity, they likely were already unenforceable without the Act.  Third, the Act elevates sexual harassment above other forms of workplace misconduct.  One would hope that the next step would be a broader prohibition on pre-dispute NDAs relating to all forms of workplace harassment.  

Finally, there are state models for bars on NDAs that are already far more protective than the act.  As Tom D'Agostino's reporting notes:

In Maine, for example, employers cannot use nondisclosure agreements to block employees from talking about workplace discrimination and harassment. And in California, employers cannot use nondisclosure agreements in connection with settlement agreements that involve sexual assault or sexual harassment. These laws place a glaring spotlight on the absence of a broader measure of protection in the Speak Out Act.

So the glass if half full, but this is nonetheless a positive development in the realm of federal workplace protections.

HT to my colleague, Michael Gibson.

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