Bad Actors Previously Protected by Non-Disclosure Agreements
The #MeToo movement has brought to light many bad actors in employment. The movement has shown that those with power will attempt to take advantage of their employees and subordinates. What was quite disturbing also was the ability of the perpetrators to silence their victims through the use of non-disclosure and confidentiality provisions within severance agreements. One person who was outed as serial harasser by the #MeToo movement was Harvey Weinstein. He and his company used non-disclosure agreements to pay off and silence his victims for many years.
On July 1, 2019, Assembly Bill 248 from the 2019 Nevada Legislative Session will take effect. The law limits the terms an employer can include in agreements settling employee claims involving sex discrimination or sexual harassment. Under certain circumstances, an employer will no longer be permitted to bar an employee from talking about the settlement of claims or the facts surrounding the employee’s claims.
Nevada’s new law follows on the heels of similar laws passed by several other states and localities. The intent of the law is to prevent wrongdoing employers from silencing their victims with onerous non-disclosure and non-disparagement clauses in settlement agreements.
What the Nevada Legislature has Done (AB 248)
AB 248 prohibits Nevada employers from including language in settlement agreement terms that require an employee to keep confidential the facts and circumstances relating to a claim in a civil or administrative action, if the employee’s claims:
(1) relate to conduct that would constitute a felony sexual offense under Nevada law;
(2) are for discrimination on the basis of sex; and/or
(3) based on retaliation against the employee for reporting sexual discrimination.
AB 248 also protects employees victimized by acts of sexual harassment or discrimination by having their identities kept confidential. An employer is required to grant an employee’s request to include settlement agreement terms protecting the employee’s identity from disclosure. This is an important provision to protect the employee’s future employment prospects and to protect harm to reputation.
The statute only applies to claims filed in a civil action, which means a state or federal court or in an administrative action, which could mean with the United States Equal Employment Opportunity Commission (EEOC) or the Nevada Equal Rights Commission (NEC). So, if a claim has not been filed, the law is not going to apply to the employee’s claims.
If an employer attempts to extract a non-disclosure agreement with an employee on sexual harassment, assault or discrimination claims, that provision of the settlement or severance agreement will be unenforceable.
Disclaimer:
This article merely provides legal information and it is not legal advice. The article does not intent to form nor does it form an attorney-client relationship between the author and any reader of the article. The only way in which to obtain legal advice concerning your specific circumstances is by retaining a licensed attorney.
