Insights & Resources

On December 7, 2022, President Biden signed the Speak Out Act into law (the “Act”).  The Act voids the enforceability of any predispute non-disclosure or non-disparagement clause that has the effect of prohibiting employees from talking about potential future instances of sexual harassment/assault in the workplace.  Therefore, an employer will not be able to enforce wholesale non-disclosure and/or non-disparagement provisions in, for example, an employment agreement, if the provision was entered into prior to a claim of sexual harassment or sexual assault being made. 

The Act, however, does not restrict the use of non-disparagement or non-disclosure provisions once an allegation of sexual harassment or assault have been made.  As such, employers may be able to reach settlements with employees involving non-disclosure and/or non-disparagement requirements when settling claims.  State and local laws should be consulted when settling claims for sexual harassment and sexual assault, as these additional laws may address other limitations. 

The Act is an example of additional efforts, similar to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which bans pre-dispute arbitration agreements and waivers covering sexual assault or sexual harassment disputes, to remedy situations encountered in the Me Too Movement.  Going forward, employers should review their employment agreements and other policies, to ensure compliance with the Speak Out Act, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, and state and local laws.

The Act is effective immediately.  For reference, a copy of the Act’s text can be found here:

https://www.congress.gov/bill/117th-congress/senate-bill/4524/text.