Englebright, Gallagher, Cruz, Simon, Davila, Glick, Cook, Lawler, Gottfried
MLTSPNSR
Amd §5-336, Gen Ob L
Prohibits provisions in any waiver, settlement, agreement or other resolution of any claim where the foundation for which is an alleged violation of article fifteen of the executive law or the labor law, that prevent the disclosure of the employee's workplace experience with the employer.
STATE OF NEW YORK
________________________________________________________________________
10021
IN ASSEMBLY
April 29, 2022
___________
Introduced by M. of A. GONZALEZ-ROJAS -- read once and referred to the
Committee on Judiciary
AN ACT to amend the general obligations law, in relation to nondisclo-
sure and non-disparagement 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 and non-disparagement agreements. 1. As used
4 in this section, the following terms shall have the following meanings:
5 (a) "Employer" shall mean all public and private employers within the
6 state.
7 (b) "Employee" shall mean all public and private employees, including
8 applicants for employment, former employees, paid or unpaid interns,
9 volunteers and natural persons employed as independent contractors to
10 carry out work in furtherance of an employer's business enterprise who
11 are not themselves employers.
12 2. (a) Notwithstanding any other law to the contrary, no employer, its
13 officers, agents or employees shall have the authority to include or
14 agree to include in any waiver, settlement, agreement or other resol-
15 ution of any claim, the factual foundation for which involves [discrimi-
16 nation, in violation of laws prohibiting discrimination, including but
17 not limited to,] an alleged violation of article fifteen of the execu-
18 tive law or the labor law, any term or condition that would prevent the
19 disclosure of the [underlying facts and circumstances to the claim or
20 action unless the condition of confidentiality is the complainant's
21 preference] employee's workplace experience with the employer. Any such
22 term or condition shall be deemed against public policy and unenforcea-
23 ble against an employee.
24 (b) [Any such term or condition must be provided in writing to all
25 parties in plain English, and, if applicable, the primary language of
26 the complainant, and the complainant shall have twenty-one days to
27 consider such term or condition. If after twenty-one days such term or
28 condition is the complainant's preference, such preference shall be
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15374-02-2
A. 10021 2
1 memorialized in an agreement signed by all parties. For a period of at
2 least seven days following the execution of such agreement, the
3 complainant may revoke the agreement, and the agreement shall not become
4 effective or be enforceable until such revocation period has expired.
5 (c) Any such term or condition shall be void to the extent that it
6 prohibits or otherwise restricts the complainant from: (i) initiating,
7 testifying, assisting, complying with a subpoena from, or participating
8 in any manner with an investigation conducted by the appropriate local,
9 state, or federal agency; or (ii) filing or disclosing any facts neces-
10 sary to receive unemployment insurance, Medicaid, or other public bene-
11 fits to which the complainant is entitled.] The provisions of this
12 subdivision do not prohibit the inclusion or enforcement of a provision
13 in any agreement that precludes the disclosure of any monetary amount
14 paid in settlement of a claim.
15 (c) The provisions of this subdivision do not prohibit the inclusion
16 or enforcement of a provision in any agreement that restricts an employ-
17 er from revealing the identity of the employee and the existence of and
18 circumstances surrounding the employee's complaint about workplace prac-
19 tices, except as required by law.
20 (d) Agreements that settle legal claims between an employer and
21 employee shall state in bold language that the employee is entitled to
22 receive a copy of the agreement in their primary language.
23 [2.] 3. Notwithstanding any provision of law to the contrary, any
24 provision in a contract or other agreement or application for employment
25 between an employer or an agent of an employer and any employee or
26 potential employee of that employer entered into as a condition of the
27 employee's employment, on or after January first, two thousand [twenty]
28 twenty-three, that prevents the disclosure of factual information
29 related to any future [claim of discrimination] alleged violations of
30 article fifteen of the executive law or the labor law, or that prevents
31 the disclosure of the employee's workplace experience with the employer,
32 is void and unenforceable [unless such provision notifies the employee
33 or potential employee that it does not prohibit him or her from speaking
34 with law enforcement, the equal employment opportunity commission, the
35 state division of human rights, a local commission on human rights, or
36 an attorney retained by the employee or potential employee]. The
37 provisions of this subdivision shall not prohibit an employer and
38 employee from agreeing to protect trade secrets, proprietary informa-
39 tion, or confidential information that does not involve alleged
40 violations of article fifteen of the executive law or the labor
41 law. Any such confidentiality or nondisclosure agreement shall include a
42 statement that the employee has the right to speak with law enforcement,
43 the equal employment opportunity commission, the division of human
44 rights, any local commission on human rights, the attorney general, any
45 regulatory agency that investigates workplace conditions, or an attorney
46 retained by the employee or potential employee.
47 § 2. This act shall take effect on the sixtieth day after it shall
48 have become a law and shall apply to all applicable contracts entered
49 into, renewed, modified or amended on or after such effective date.
