For decades, many victims of sexual assault or sexual harassment in the workplace have been silenced by clauses in their employment contracts that prohibit them from speaking out about what happened to them—or even warning others of what is going on at a company. These victims often find it difficult to heal from traumatic events because they can’t speak freely.
Much of this changed with the passing of the “Speak Out Act,” a bipartisan bill signed into law by President Biden on December 7, 2022. The law prohibits the enforcement of any pre-dispute nondisparagement or nondisclosure clauses (commonly referred to as NDAs) found in employment contracts, thereby enabling victims to speak out about what happened to them and warn others about bad actors and bad companies. For example, if an employee enters into an employment contract with a company containing such clauses and is thereafter sexually harassed, those particular clauses would not prohibit the employee from talking about the incident or speaking out against the company for subjecting the employee to such behavior.
Speak Out Act Does Not Offer Complete Protection
While this is a positive step, it is also important to highlight what the law does not prohibit. Unless state or local law provides otherwise, nondisparagement and nondisclosure clauses entered into after the alleged conduct took place remain enforceable. For example, if a victim of sexual assault thereafter enters into a settlement agreement with an employer that contains nondisparagement and nondisclosure clauses, the employee remains contractually bound by such provisions.
It is also important to note that pre-dispute nondisparagement and nondisclosure clauses remain enforceable as to topics outside of the context of sexual assault and Minnesota sexual harassment. In other words, if you sign a pre-employment contract containing those clauses and you were the victim of age discrimination (rather than sexual assault or sexual harassment ), those clauses would still remain in effect and enforceable.
Consider the Best Course of Action
There are also practical considerations that victims of sexual assault and harassment must evaluate. While the “Speak Out Act” allows certain victims to speak out about what happened to them (assuming they did not sign a post-dispute contract), it may not always be the best course of action. After all, a significant motivator for companies to settle these kinds of disputes is so the matter remains private, and losing that leverage may make it more difficult for a victim to settle or receive sufficient compensation for their trauma.
Therefore, if you are the victim of sexual assault or sexual harassment in the workplace, it is always in your best interest to speak with Schaefer Halleen’s experienced employment attorneys. With our guidance, you will feel empowered to hold individuals and companies accountable and ensure that you receive justice.
