Under the new law, your employer cannot prevent you from talking to the authorities by invoking the non-disclosure agreement.
Washington, DC – President Joe Bidden signed into law the much-awaited Speak Out Act which stops employers from silencing sexual harassment victims. According to the Act, passed by Congress last month, employers will no longer be able to use pre-dispute non-disclosure and non-disparagement agreements in disputes arising from sexual assault and sexual harassment.
The change in legislation was inspired by the #MeToo movement. Up to now, non-disclosure and non-disparagement clauses have been widely used to prevent employees from filing complaints for sexual harassment or going public with their stories.
The Speak Out Act only refers to non-disclosure agreements that are entered before an employee complains of sexual assault or harassment. It does not prohibit non-disclosure agreements that are part of a settlement between the two parties.
What are non-disclosure agreements?
Non-disclosure agreements, or NDAs, are legally enforceable agreements between parties that are used to ensure that certain information will remain confidential. Those are usually entered when an employee is first hired. They may be included in the contract under various names, such as confidentiality agreements (CAs), confidential disclosure agreements (CDAs), and proprietary information agreements (PIAs). No matter what they are called, they mean the same thing – the employee cannot discuss any information protected by the agreement.
Non-disparagement clauses state that you won’t say anything negative about the company or its products, services, or leaders—in any form of communication.
Both can be used to silence an employee who has a sexual harassment complaint.
From now on, if your boss invokes an NDA when you go to them with a sexual harassment complaint, you should contact experienced sexual harassment lawyers right away.
Steps to follow when you have a sexual harassment complaint
Talk to HR
If you’re being harassed by your co-workers or by someone in a management position, the first step is to talk to your HR. Most states require employers to have anti-harassment policies in place. These policies should clearly state what types of behaviors constitute sexual harassment and what the penalties are. The policy should also indicate the person you need to talk to if you’re being harassed.
Your employer is required by law to investigate sexual harassment complaints and take immediate steps to put an end to it. You have the right to be counseled by knowledgeable lawyers during the internal investigation.
File an official complaint
If the employer dismisses your complaint or you’re not satisfied with the proposed remedies, your next step is to file an official complaint with either state or federal authorities.
For instance, if you file a complaint with the Equal Employment Opportunity Commission (EEOC), they will investigate your allegations and offer to mediate between you and your employer.
Under the new law, your employer cannot prevent you from talking to the authorities by invoking the non-disclosure agreement. Even if there is such a clause in your contract, that can be used to stop you from disclosing trade secrets, information about your work, company strategies, etc. If there’s something of a sexual nature you are free to talk about it.
Sue your employer
If a settlement cannot be reached during mediation, the EEOC might file a lawsuit on your behalf. If they decide not to pursue your case, they may issue you a Notice to Sue, which will allow your employment lawyers to file a lawsuit. You can seek damages for missed wages if you were fired after you complained about the harassment you experienced. You can also seek general damages for mental and emotional suffering.