Earlier this 12 months, we reported that Congress amended the Federal Arbitration Act to preclude obligatory binding arbitration of sexual assault and sexual harassment claims. This previous week, Congress went a step additional, passing the Converse Out Act, S. 4524, which is aimed toward prohibiting potential, pre-dispute non-disclosure and non-disparagement agreements that forestall staff from discussing sexual harassment or sexual assault. The Senate handed the invoice unanimously on September 29, 2022 and the Home of Representatives voted in favor of the measure, 315-109, on November 17, 2022. President Biden has expressed his intention to signal the invoice into regulation, and it’ll turn into efficient instantly upon his signature.
The bipartisan federal laws – the most recent federal invoice impressed by the #metoo motion and one which has been slowly gaining help over the previous 5 years – applies solely to pre-dispute nondisclosure and non-disparagement agreements and related clauses in employment agreements, rendering them null and void in cases by which sexual harassment or sexual assault is alleged in violation of federal, state, or tribal regulation. The objective of the invoice is to stop the usage of pre-dispute agreements aimed toward silencing staff from reporting sexual impropriety within the office. Related measures have been handed on the state stage in some jurisdictions (see, for instance, our prior reporting relating to analogous California, Illinois, Maryland, and Vermont right here, right here, and right here, to call just some), however when President Biden indicators the Converse Out Act, as he has indicated he’ll do, the regulation turns into instantly efficient nationwide.
Earlier variations of the Converse Out Act included language precluding non-disclosure clauses as utilized to claims of race, age, nationwide origin, and related equal employment alternative claims, however the invoice was stripped again to use solely to claims of sexual harassment and sexual assault in its closing type. President Biden’s administration urges additional laws to deal with the usage of non-disclosure agreements used to stop dialogue of different sorts of labor violations, however as a sensible matter, the Nationwide Labor Relations Act already protects the suitable of lined staff to interact in protected, concerted exercise – akin to discussing office discrimination, assault, and harassment – and present EEO legal guidelines shield staff engaged in conduct aimed toward asserting their very own rights or cooperating with different staff in defending their rights.
Moreover, the Converse Out Act solely precludes the usage of pre-dispute non-disclosure and non-disparagement agreements, that means these signed earlier than the illegal conduct begins. It doesn’t forestall employers and staff from agreeing to confidential settlements after alleged sexual harassment or abuse happens. Events stay free to enter into such preparations, offered that employers nonetheless can not preclude staff from reporting violations of EEO legal guidelines to businesses entrusted with imposing such legal guidelines, just like the Equal Employment Alternative Fee. Employers should require non-disclosure agreements to guard commerce secrets and techniques and confidential enterprise info, and should embrace confidentiality provisions in severance agreements. Consequently, the Converse Out Act is just not as a lot a sea change itself as a recommitment by Congress and the Administration to increasing measures aimed toward transparency round sexual misconduct within the office. Employers ought to assessment present handbook insurance policies and normal non-disclosure agreements to make sure compliance with the Converse Out Act, however that needs to be only one small step in a complete audit of sexual harassment insurance policies, reporting mechanisms, and investigation procedures.