This article was originally published in
Husch Blackwell's News and Insights blog and is published here with the author’s permission. Blog has been edited for publication on WisBar, with author approval.
Five years after the beginning of the #MeToo movement, sexual assault and harassment in the workplace remain an issue. According to the
National Sexual Violence Resource Center, 81% of women and 43% of men report they have experienced some form of sexual harassment or assault in their lifetime.
On Nov. 16, 2022, Congress passed the bipartisan
Speak Out Act, and on Dec. 7, 2022, President Biden signed it into law. The Act applies to any claim of sexual assault or harassment brought under state, federal, or tribal law on or after the date the Act was signed.
Specifically, the Act prohibits the enforcement of non-disclosure and non-disparagement provisions regarding discussion or disclosure of sexual assault or harassment disputes entered into before such assault or dispute is alleged to have occurred. This includes non-disclosure and non-disparagement provisions contained in employment agreements, non-disclosure agreements, and other agreements employees might sign prior to a sexual assault or harassment dispute arising.
Quinn Stigers, Marquette 2022, is a labor and employment associate in
Husch Blackwell’s Milwaukee office, where she counsels employers on day-to-day employment matters.
Randall Thompson, St. Louis University, is a labor and employment partner at
Husch Blackwell’s St. Louis office, where he represents clients in all matters relating to labor and employment law.
Key Provisions of the Act
Non-disclosure provisions by which employees agree to keep confidential the details of any future sexual assault or harassment disputes are unenforceable as of the enactment date.
Non-disparagement provisions, which limit employees’ ability to speak out against or say anything negative about their employer in the context of future sexual assault or harassment disputes, are unenforceable as of the enactment date.
The Act applies to all contracts past, present, and future, as long as the claim of sexual assault or harassment is brought under state, federal, or tribal law on or after the enactment date.
States may continue to enforce their laws that are equally or more protective of an employee’s ability to speak out about alleged sexual assault or harassment in the workplace, and those state laws are not superseded by the Act.
Conduct Permitted Under the Act
The Act allows employers and employees to enter into non-disclosure and non-disparagement agreements regarding alleged sexual assault or harassment as a result of a settlement, so long as otherwise permitted by applicable state law.
The Act allows employers and employees to enter into non-disclosure and non-disparagement agreements at the outset of employment if the provisions don’t include sexual assault or harassment.
The Act specifically allows employers to protect trade secrets or proprietary information with non-disclosure agreements.
The Act specifically allows employees to use pseudonyms in filing claims of sexual assault or harassment if doing so is permitted under state, federal, or tribal law.
What This Means to Employers
The Act’s impact on most employers may be fairly limited.
First, the Act only applies to pre-dispute provisions, so it does not impact employers’ use of these provisions as a result of a settlement agreement.
Second, many employers do not explicitly include future claims of sexual assault or harassment in their non-disclosure clauses. In fact, most employers use non-disclosure clauses or agreements to protect only their trade secrets and confidential or proprietary information, and the provisions do not even reach allegations of sexual assault or harassment in the workplace.
The Act may limit an employer’s broad non-disparagement provision, however. These two types of agreements in the context of sexual assault and harassment could run afoul of other laws, and are generally not good practice. As such, many employers already do not utilize them in the ordinary course of their business.
The Act simply means that, if an employee speaks out about or files a claim related to alleged sexual harassment or assault in the workplace, an employer may not attempt to use its non-disclosure or non-disparagement clauses that the employee signed before the disputes occurred to prevent the employee from speaking about it.
Conclusion: A Few Takeaways
Now that the Act has been signed into law, many employers will want to review the wording of their non-disclosure and non-disparagement provisions entered into with employees as a condition of employment to ensure such provisions comply with the Act and any applicable state laws.
If an employer’s non-disclosure or non-disparagement provision explicitly prevents employees from speaking about alleged sexual assault or harassment, employers are encouraged to redraft those provisions to not include sexual assault or harassment, or risk the entire provision being held unenforceable or even, in some states, voided entirely.
Employers must also remember to consult state law for further limits on non-disclosure and non-disparagement provisions. Although entering into such provisions as a result of a settlement agreement is permitted under the Act, that does not mean it is as straightforward under state law.
As of this writing,
16 states have enacted more stringent laws that further limit non-disclosure and non-disparagement agreements. Because the Act does not supersede equally more protective state laws, employers must also comply with these additional state law restrictions.
This article was originally published on the State Bar of Wisconsin’s
Labor & Employment Law Section Blog. Visit the State Bar
sections or the
Labor & Employment Law Section webpages to learn more about the benefits of section membership.
