On November 16, 2022, the House passed the Speak Out Act with bi-partisan approval. The Senate had passed the bill by unanimous consent back in September. It now heads to President Biden’s desk, where he is expected to sign the bill into law.
The Speak Out Act follows closely on the heels of the #MeToo bill, which banned mandatory arbitration for workplace sexual harassment and assault claims, referenced here. The bill is not as sweeping as many of those passed by sixteen states, Maine being the most recent, referenced here. Instead, it prohibits the enforcement of non-disclosure or non-disparagement provisions that were agreed to before any workplace sexual assault or sexual harassment occurred. Put differently, provisions that may be in a standard employment agreement or restrictive covenant agreement entered into before the alleged harassment or assault are not sufficient to keep the employee from disclosing the incident. Thus, there is an ability to enter into a post-incident settlement agreement that prevents the employee from disclosing information about the incident.
While the Speak Out Act is not as broad as similar laws, it does offer more protections to employees than one may discern on an initial reading. For example, the bill defines “sexual assault” and “sexual harassment” as any conduct that would meet the respective definitions under federal, state, or tribal law. Furthermore, it explicitly states that it does not supersede any federal or state law. In other words, there is no preemption of stricter state laws. If you are in a state that has greater regulation of non-disclosure agreements, those laws still apply.
In summary, all employers in the United States can no longer rely on pre-incident agreements to prevent employees who have been victims of workplace sexual assault or sexual harassment from disclosing information about those incidents.
Williams Mullen’s employment attorneys are monitoring this issue for updates. If you have questions or are seeking additional guidance please contact Matt Anderson.