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President Biden Signs the Speak Out Act into Law

On December 7, 2022, the President signed the Speak Out Act, a #metoo-era legislative package intended to address employment-based confidentiality agreements. Specifically, the Speak Out Act nullifies pre-dispute non-disclosure, non-disparagement, and similar confidentiality agreements to the extent they prohibit an employee from discussing sexual harassment or assault. In other words, the Speak Out Act prohibits the enforcement of confidentiality clauses entered into as a condition of employment before any alleged sex-based harassment or assault has occurred.

Notably, the Speak Out Act only applies to sex-based misconduct in the workplace. Efforts to include age and race discrimination in the Act were defeated in Congress. And nothing in the Act precludes employers from protecting and enforcing their trade secrets and intellectual property.

Importantly, because the Act only applies to pre-dispute agreements, post-dispute non-disclosure and non-disparagement agreements—for instance, those included in severance agreements or reached as part of the settlement of sexual harassment and/or assault claims—are still enforceable.

The Speak Out Act is the second legislative response to the #metoo era. Earlier this year, Congress enacted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. Like its name, that law prohibits employers from compelling employees in sexual assault and harassment cases from arbitrating their claims. While arbitration remains an option for those cases, the plaintiff has the choice of litigation over arbitration.

To better understand how these new laws impact your business, you should work closely with counsel to review and update their existing employment practices and agreements. If you have questions concerning this new law, please feel free to contact one of our labor and employment attorneys by calling (501) 371-9999.

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