Littler

Under a new Nevada law, effective July 1, 2019, employers that settle certain allegations involving sex discrimination or sexual offenses will not be able to bar the claimant from talking about the existence of the settlement, or the facts and circumstances giving rise to the claim.

Assembly Bill No. 248, signed into law by Nevada Governor Steve Sisolak on May 25, 2019, mirrors similar laws passed in California, New Jersey, New York, and other states in the midst of the #MeToo movement.  The law’s purpose is to prevent employers from silencing employees through the use of nondisclosure agreements, which may operate to let abusers or harassers continue their bad behavior.

AB 248’s Restrictions

By its terms, AB 248 prohibits employers1 from including in settlement agreements language that requires an employee to keep confidential the facts and circumstances relating to a claim in a civil or administrative action, if the claim: (1) relates to conduct that would constitute a sexual offense that would qualify as a felony under Nevada law, even if the alleged offense has never been investigated or prosecuted;2 (2) asserts discrimination on the basis of sex; and/or (3) asserts retaliation against the claimant for reporting alleged sexual discrimination.  The law further permits alleged victims to have their identities – or any facts that could lead to the disclosure of their identities – kept confidential.  Such requests by victims for contractual terms that protect their identities must be granted, unless a governmental agency or public officer is a party to the agreement.

Courts are also prohibited from sealing or other otherwise ordering that the information enumerated in AB 248 be kept confidential.

Practical Considerations

The statute appears to be limited to claims that have actually been filed in a civil action (i.e., state or federal court) or an administrative action (i.e., before the U.S. Equal Employment Opportunity Commission or the Nevada Equal Rights Commission).  Arguably, the statute does not apply to matters resolved prior to pursuit of these claims in an administrative or civil proceeding.  Practically speaking, any provision prohibiting disclosure of facts concerning a claim of sexual misconduct in the workplace is simply void, though the remainder of the agreement remains intact. 

That said, the statute does not seem to prohibit carve outs for maintaining the confidentiality of other types of claims or factual allegations unrelated to an alleged sexual offense, a claim of sexual discrimination, or a relevant claim of retaliation.  Nevada employers resolving claims including allegations of sexual abuse or misconduct should consult with labor and employment counsel regarding the validity and scope of any confidentiality provisions.

 

Footnotes

1 This statute also applies to landlords.

2 The types of offenses that are defined as “sexual offenses” are enumerated in Nevada Revised Statutes § 179D.097.  Classifications of crimes are enumerated under Nevada Revised Statute §§ 193.120 et seq

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