Speak Out Act Signed Into Law, Curbing Use of Sexual Harassment NDAs

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Sexual Harassment Survivors No Longer Prevented From Speaking Out Under New Nondisclosure Agreements Law

Sexual Harassment Survivors No Longer Prevented From Speaking Out Under New Nondisclosure Agreements Law

Dec 8, 2022

President Joe Biden officially signed the Speak Out Act into law Wednesday, limiting the use of nondisclosure agreements (NDAs) which are often used to block survivors of workplace sexual harassment and assault from speaking out. The legislation curbs the use of confidentiality agreements going forward, allowing survivors of workplace sexual misconduct to speak publicly about their experiences.

White House press secretary Karine Jean-Pierre confirmed that Biden had signed the bipartisan Speak Out Act, which bars the use of nondisclosure agreements that employees or contractors are regularly required to sign, often as a condition of employment, according to PBS SoCal.

Speak Out Act Signed Into Law, Curbing Use of Sexual Harassment NDAs

In the wake of the #MeToo Movement, the Speak Out Act is part of ongoing workplace changes meant to address the systemic issue of sexual misconduct. The new law applies to any NDAs signed before a dispute has occurred.

Senator Kirsten Gillibrand of New York introduced the measure.

“Instead of protecting trade secrets as it was initially intended, abusive use of NDAs silence employees and covers up serious and systemic misconduct,” Gillibrand said.

“The law would make existing nondisclosure agreements unenforceable. It also would apply to any agreements between providers of goods and services and their customers,” PBS SoCal reported.

Workplaces such as massage parlors and assisted living facilities were specifically cited by Senator Gillibrand when the legislation was introduced, according to PBS SoCal. Such workplaces are known to require mandatory NDAs for workers.

Certain scenarios are not affected by the Speak Out Act:

  • Any agreements signed after a dispute
  • Any allegations outside the scope of workplace sexual assault or harassment (such as discrimination based on race or religion)

The legislation passed the House 315-109 after having passed the Senate unanimously in September.

“Today, one in three workers is subjected to NDAs that hide sexual misconduct in order to protect a business’s reputation,” the lawmakers said, according to PBS SoCal’s report. “We’re taking the gag off of survivors and pushing businesses to create safer work environments.”

Former FOX News Hosts Advocated for Passage of Speak Out Act

Former FOX News hosts Gretchen Carlson and Julie Roginsky advocated for the passage of the Speak Out Act, according to an Axios report.

Carlson accused now-deceased FOX News CEO Roger Ailes of making numerous unwanted sexual advances and harming her career when she thwarted them. As PBS SoCal reported, Carlson pushed for the Speak Out Act and has spoken about how the NDA she signed has barred her from telling her story.

The new law, however, would not apply to Carlson’s NDA. Carlson signed a nondisclosure agreement as part of a reported $20 million civil settlement with FOX News, PBS SoCal confirmed.

“The law follows another bipartisan change Biden approved in March that gave workplace victims of sexual assault or harassment the right to seek resource in the courts rather than being forced to settle cases through arbitration. The process often benefits employers and keeps allegations from becoming public,” PBS SoCal said.

Both measures come approximately five years after the #MeToo Movement sparked what PBS SoCal referred to as a “global reckoning” against all forms of sexual misconduct. The Speak Out Act represents legislation that received “rare, broad bipartisan support” in Congress, PBS SoCal said.

Speak Out Act Mirrors California’s Code of Civil Procedure CCP § 1001 and § 1002

California laws such as AB 218 and AB 2777 – both of which temporarily pause the statute of limitations in child and adult sexual abuse civil claims, respectively – are often a harbinger of future legislation at both the state and federal levels.

California first enacted a law in 2018 banning employers from imposing contracts that prevent employees from talking about their claims of workplace sexual harassment or assault, according to a Bloomberg Law report. In 2021, the Golden State reinforced the nondisclosure agreement ban through State Bill 331 (SB 331). The new law took effect at the beginning of 2022.

Under California Code, Code of Civil Procedure – CCP § 1001, a nondisclosure provision within a settlement agreement is prohibited under the following scenarios:

In addition, California Code, Code of Civil Procedure – CCP § 1002 mandates that in civil actions warranting damages, nondisclosure agreements are prohibited for:

Since California passed nondisclosure agreement legislation in 2018, fourteen other states have followed suit, enacting similar restrictions on private-sector employers.

California AB 2777 Opens 3-Year Window for Adult Survivors of Sexual Assault

California’s AB 2777 legislation was signed into law earlier this year and takes effect on January 1, 2023. Under AB 2777, adult survivors of sexual assault may file civil claims seeking financial damages for incidents occurring on or after January 1, 2009.

Known as the Sexual Abuse and Accountability Cover-Up Act, AB 2777 offers all adult survivors of sexual assault an opportunity to secure justice and a maximum financial damages award by filing a civil claim against a perpetrator.

As of January 1, 2023, sexual assault and abuse claims which would otherwise be barred by the statute of limitations are eligible to be brought in civil court through December 31, 2026.

Moreover, AB 2777 creates a one-year revival window allowing a sexual misconduct survivor plaintiff to bring a claim for crimes involving cover-ups that would otherwise be barred because the statute of limitations expired.

Under AB 2777’s one-year lookback window cover-up provision, the plaintiff would have to allege the following:

  • She or he was sexually assaulted.
  • One or more entities are legally responsible for damages stemming from that sexual assault (which can be demonstrated through, inter alia, negligence, intentional torts, and vicarious liability).
  • Said entities – which may include employees, officers, directors, representatives, or agents – engaged in a cover-up or attempted cover-up of a previous instance or allegation of sexual assault by an alleged perpetrator of such abuse.

Dordulian Law Group’s (DLG) Los Angeles sexual assault and misconduct attorneys are currently accepting AB 2777 cases on behalf of survivors. Given the passage of the legislation, a wave of claims are expected to be filed over the course of the next three years. Our team of dedicated sexual assault lawyers is standing by 24/7 to answer any questions you have and available immediately to help you begin the process of securing justice for a past incident.

Contact DLG’s Los Angeles, California, Sexual Assault Lawyers

DLG is led by Sam Dordulian, an experienced former sex crimes prosecutor and Deputy District Attorney for Los Angeles County who has helped clients secure justice through more than $100,000,000.00 in settlements and verdicts. Dordulian has been fighting on behalf of survivors for over 25 years, obtaining more than 100 jury trial victories throughout his decorated career.

Dordulian created DLG’s SAJE Team (Sexual Assault Justice Experts) to offer survivors an all-encompassing support network that is available 24/7 throughout the litigation process:

  • A proven team of attorneys: Dordulian leads a group of skilled, trusted, and aggressive sexual assault attorneys with experience handling all types of sexual violence and sex crimes claims.
  • An in-house clinical therapist with over 15 years of experience supporting survivors of sexual violence.
  • An in-house victim advocate dedicated to assisting survivor clients in need.
  • An in-house Chief Investigator/retired LAPD sex crimes detective investigating all cases on behalf of survivors.

Ready to file a claim and pursue justice through a financial damages award? Our expert attorneys are available online or by phone now.

Contact DLG today at 818-322-4056 for a free and confidential consultation regarding your sexual assault, abuse, or misconduct case.

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