The Federal Speak Out Act Limits Confidentiality Over Resolved Claims Against Employers For Sexual Harassment And Assault. Here Are Some Practical Pointers For New Jersey Employers.

On December 7, 2022, President Biden signed the Speak Out Act into law. The Act prohibits the enforceability of non-disparagement and non-disclosure provisions in agreements before a claim (informal or formal) of sexual harassment or sexual assault is made. The Act specifically pertains to those non-disparagement provisions which prohibit one party from making negative references and statements about the other party and non-disclosure provisions which restrict a party from discussing conduct, information, or a settlement covered by an agreement.

The practical impact of the Act means that employers should review their new hire paperwork, such as standard employment applications (some contain promises made by the applicant as a condition of applying for the job), and confidentiality and arbitration agreements for compliance.

As to agreements made after a claim has been made, for instance, those to resolve a claim of sexual harassment or sexual assault, employers must still comply with applicable state laws on confidentiality. In New Jersey, a confidentiality provision which “has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment” is considered against public policy and is unenforceable. For employers with multi-state operations, New Jersey is not alone in its restrictions on confidentiality.