In an effort to preserve the rights of those who experience workplace discrimination, retaliation or harassment, the New Jersey State Bar Association gave law makers suggested amendments to legislation about the use of non-disclosure agreements. The legislation passed the New Jersey Senate 34-1 Thursday.
The association offered several proposals to consider with S-121.
Here is the NJSBA's statement:
The NJSBA recognizes the fundamental right of people who are victimized to make a choice to keep their private matters confidential. Only the victim can decide how best to move forward after having experienced workplace sexual harassment or assault or discrimination. Those who wish to settle must be allowed to decide for themselves whether to do so with enforceable confidentiality restrictions or with the right to make further public disclosure.
As a practical reality, employees who settle their claims typically have grave concerns about continuing to provide financially for their families and usually must continue in their careers. S-121 (Weinberg), as currently written, strips employees of the right to settle with an enforceable confidentiality restriction. This will result in an across-the-board reduction in the value of settlements or a revictimization of the employee through protracted litigation, trials and inevitable appeals.
S-121 unfairly shifts the burden of preventing all future workplace harms onto the backs of victims who have already been brave enough to come forward. This is a policy choice that cannot be supported by the NJSBA.
For these reasons, the NJSBA urges the following Employee Choice Amendments to the bill, which will allow those employees who have been victimized to determine the path that is best for them:
Paragraphs 1 through 4 of the bill should be deleted in the entirety and replaced with:
(1) Except for settlement agreements (defined as any agreement that releases claims), an employer may not require an employee, contractor, or consultant, as a condition of employment or engagement, to sign a nondisclosure agreement, waiver, or other document that prevents the disclosure of discrimination, harassment, retaliation, and/or physical or sexual assault occurring in the workplace, at work-related events, or between employees, contractors, consultants, and/or employers off the employment premises and that any such nondisclosure agreement is against public policy and is void and unenforceable. Notwithstanding any provision in this law, an employer can prevent disclosure by an employee, contractor or consultant to whom a workplace complaint may be made, or who has been assigned responsibility for handling an employer’s responsive action to a workplace complaint.
(2) Any nondisclosure provision in a settlement agreement that has the purpose or effect of preventing the settling employee, contractor, or consultant from disclosing or discussing discrimination, harassment, retaliation, and/or physical or sexual assault occurring in the workplace, at work-related events, or between employees, contractors, consultants, and/or employers off the employment premises shall include express exceptions to permit disclosure to (a) immediate family, health care professionals, attorneys, accountants, financial and tax advisors, (b) the United States Equal Employment Opportunity Commission, the New Jersey Division on Civil Rights, the National Labor Relations Board, (c) federal, state and local tax authorities, unemployment authorities, workers compensation carriers, long-term and short-term disability carriers, and (d) as otherwise required by law. The individuals in section (2)(a) to whom permitted disclosures are made will be instructed that the disclosed information is subject to a nondisclosure agreement, and any violation by them shall be deemed a breach of the nondisclosure provision by the settling party who made the disclosure to them. In the event of a charge or complaint initiated by a settling employee, contractor, or consultant under section (2)(b) that includes disclosures subject to a nondisclosure provision in a settlement agreement, the settling employee, contractor or consultant will promptly notify the employer of the filing of such charge or complaint, unless such notification is prohibited by law.
(3) Any such nondisclosure provision in a settlement agreement that has the purpose or effect of preventing the settling employee, contractor, or consultant from disclosing or discussing discrimination, harassment, retaliation, and/or physical or sexual assault occurring in the workplace, at work-related events, or between employees, contractors, consultants, and/or employers off the employment premises shall include an express exception to permit the disclosure of information relevant to a workplace or governmental report of or investigation into a claim of discrimination, retaliation, harassment, or physical or sexual assault.
(4) Any such nondisclosure provision in a settlement agreement shall be provided to all parties, and the settling employee, contractor, or consultant shall have up to twenty-one days to consider the provision. If the nondisclosure provision is the settling employee, contractor, or consultant’s preference, such preference shall be memorialized in an agreement signed by all parties. For a period of seven days following execution of such agreement by the settling employee, contractor, or consultant, he or she may revoke the agreement, and the agreement shall not become effective or be enforceable until such revocation period has expired.
(5) Nothing in this law shall be interpreted to prevent an employer from promulgating reasonable workplace rules to conduct an effective investigation and remediate workplace complaints as long as such rules and their enforcement are consistent with applicable law.
(6) No person shall take any retaliatory action, including but not limited to failure to hire, discharge, suspension, demotion, discrimination in the terms, conditions or privileges of employment or other adverse action against a person on grounds that a person made disclosures permitted under the law.
The remaining two paragraphs should remain in the bill, but should be renumbered as follows:
(7) Any person claiming to be aggrieved by a violation of P.L. , c. (C. ) (pending before the Legislature as this bill) may initiate suit in Superior Court. An action pursuant to this section shall be commenced within two years next after the cause of any such action shall have accrued. All remedies available in common law tort actions shall be available to prevailing plaintiffs. These remedies are in addition to any provided by P.L. , c. (C. ) (pending before the Legislature as this bill) or any other statute. A prevailing plaintiff shall be awarded reasonable attorney fees and costs.
(8) This act shall take effect immediately and shall apply to all contracts and agreements entered into, renewed, modified or amended on or after the effective date.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.