Prohibits settlement agreements in any claim involving sexual harassment or any other form of discrimination prohibited by law from containing any condition that requires the complainant to pay the defendant liquidated damages in the event that the plaintiff violates any nondisclosure agreement included in such settlement agreement.
STATE OF NEW YORK
________________________________________________________________________
849--D
2019-2020 Regular Sessions
IN ASSEMBLY
January 11, 2019
___________
Introduced by M. of A. SIMOTAS, QUART, PAULIN, SEAWRIGHT, M. G. MILLER,
LENTOL, GOTTFRIED, CRUZ, THIELE, STIRPE, SIMON, ZEBROWSKI, CYMBROWITZ,
STERN, GLICK, FERNANDEZ, MAGNARELLI, MOSLEY, LUPARDO, BLAKE, GALEF,
EPSTEIN, MONTESANO, NIOU, NOLAN, L. ROSENTHAL, JACOBSON, ROZIC -- read
once and referred to the Committee on Judiciary -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- again reported from said committee with amend-
ments, ordered reprinted as amended and recommitted to said committee
-- recommitted to the Committee on Judiciary in accordance with Assem-
bly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- recommitted
to the Committee on Judiciary in accordance with Assembly Rule 3, sec.
2 -- committee discharged, bill amended, ordered reprinted as amended
and recommitted to said committee
AN ACT to amend the general obligations law, in relation to violations
of nondisclosure agreements in certain settlement agreements
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 5-336 of the general obligations law, as amended by
2 chapter 160 of the laws of 2019, is amended to read as follows:
3 § 5-336. Nondisclosure agreements. 1. (a) Notwithstanding any other
4 law to the contrary, no employer, its officers or employees shall have
5 the authority to include or agree to include in any settlement, agree-
6 ment or other resolution of any claim, the factual foundation for which
7 involves discrimination, harassment, or retaliation, in violation of
8 laws prohibiting discrimination, including discriminatory harassment or
9 retaliation, including but not limited to, article fifteen of the execu-
10 tive law, any term or condition that would prevent the disclosure of the
11 underlying facts and circumstances to the claim or action unless the
12 condition of confidentiality is the complainant's preference.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01543-11-0
A. 849--D 2
1 (b) Any such term or condition must be provided in writing to all
2 parties in plain English, and, if applicable, the primary language of
3 the complainant, and the complainant shall have up to twenty-one days to
4 consider such term or condition. If [after twenty-one days such term or
5 condition] confidentiality is the complainant's preference, such prefer-
6 ence shall be memorialized in an agreement signed by all parties. For a
7 period of at least seven days following the execution of such agreement,
8 the complainant may revoke the agreement, and the agreement shall not
9 become effective or be enforceable until such revocation period has
10 expired.
11 (c) Any such term or condition shall be void to the extent that it
12 prohibits or otherwise restricts the complainant from: (i) initiating,
13 testifying, assisting, complying with a subpoena from, or participating
14 in any manner with an investigation conducted by the appropriate local,
15 state, or federal agency; or (ii) filing or disclosing any facts neces-
16 sary to receive unemployment insurance, Medicaid, or other public bene-
17 fits to which the complainant is entitled.
18 2. Notwithstanding any provision of law to the contrary, any provision
19 in a contract or other agreement between an employer or an agent of an
20 employer and any employee [or], potential employee, or independent
21 contractor of that employer entered into on or after January first, two
22 thousand twenty, that prevents the disclosure of factual information
23 related to any future claim of discrimination is void and unenforceable
24 unless such provision notifies the employee [or], potential employee, or
25 independent contractor that it does not prohibit [him or her] the
26 complainant from speaking with law enforcement, the equal employment
27 opportunity commission, the state division of human rights, the attorney
28 general, a local commission on human rights, or an attorney retained by
29 the employee or potential employee.
30 3. Notwithstanding any other law to the contrary, no release of any
31 claim, the factual foundation for which involves unlawful discrimi-
32 nation, including discriminatory harassment, or retaliation, shall be
33 enforceable, if as part of the agreement resolving such claim:
34 (a) the complainant is required to pay liquidated damages for
35 violation of a nondisclosure clause or nondisparagement clause;
36 (b) the complainant is required to forfeit all or part of the consid-
37 eration for the agreement, for violation of a nondisclosure clause or
38 nondisparagement clause; or
39 (c) it contains or requires any affirmative statement, assertion, or
40 disclaimer by the complainant that the complainant was not in fact
41 subject to unlawful discrimination, including discriminatory harassment,
42 or retaliation.
43 § 2. This act shall take effect immediately and shall apply to agree-
44 ments entered on or after such date.