A Bill in the New York Senate Would Offer Enhanced Protection for Some Survivors of Sexual Harassment Who Signed Non-Disclosure Agreements

The responses that survivors of workplace sexual harassment experience are wide and varied. For those that prefer to resolve their matters through a settlement, some may want to ensure maximum privacy as part of that process. Others of those survivors may want to avoid a settlement that silences them, instead maintaining their freedom to speak out about those who played a role in the harassment. Whatever category you fall into, know that there are options when it comes time to hammer out your settlement agreement. To make sure that your settlement agreement meets your needs and properly protects you, retain a knowledgeable New York sexual harassment lawyer to represent you throughout the process.

For those who seek to avoid being forced to choose between getting closure through a settlement or being free to speak about their experience, New York law has already erected protections. If a bill currently advancing through the state Senate becomes law, more statutory protections for certain survivors of sexual harassment will soon be on the books.

In April 2018, Governor Cuomo signed into law a bill that says an employer may not include a non-disclosure agreement (NDA) in a sexual harassment settlement unless the employee desires it. Mayor de Blasio signed into law a similar rule for New York City one month later.

A new bill in the New York State legislature could offer much greater protection for that group of survivors who initially preferred privacy but later felt a compelling urge to speak out.

As the law stands now, an employer has broad freedom in how an NDA is worded. A survivor could, for example, request an NDA and the employer could draft language that says that, if the employee violates the terms of the NDA, she must pay the employer a set sum of money (called “liquidated damages.”)

This, of course, allows an employer to exert a great deal of leverage within settlement agreement negotiations. The employee may feel things that motivate her to prize anonymity. Those motivations may be professional, as the employee may fear being “blacklisted” if her identity is made known, or they may be personal/familial, as sexual harassment is a very emotional and private matter for many survivors. The employer can use these motivations to extract an agreement from the worker that says that, in exchange for anonymity, the survivor must remain silent forever, or else face potentially dire financial consequences.

Some damages clauses demand payment of $1 million for a single violation

Some of these liquidated damages clauses can be highly punitive. For example, some reports have indicated that one clothing company put in an “anti-disparagement” provision that called for it to receive liquidated damages of as much as $1,000,000 for a single non-disparagement violation by the employee.

The Let Survivors Speak Act, which was slated to pass the state Senate before Memorial Day, would shield survivors who sign NDAs but later change their minds and decide to speak out from having to pay liquidated damages or face any financial punishment for speaking up.

According to the New York Daily News, Sen. Alessandra Biaggi stated that NDAs “have long been used to silence the voices of survivors of sexual harassment.” While NDAs should be available to protect survivor privacy, “liquidated damages clauses are often used to financially deter survivors” who change their minds from speaking.

If this bill becomes law, it could significantly alter the considerations of a workplace sexual harassment survivor who is negotiating a settlement. A survivor who previously would have been hesitant to sign an NDA might now find that her interests are better served by working out a settlement with an NDA than one without one.

Whether the settlement you seek is one with – or without – an NDA, you need an experienced legal advocate to get you an agreement that sufficiently protects you while also giving you the flexibility you prefer. To learn more about your rights, your obligations, and your legal options, reach out to the knowledgeable New York sexual harassment attorneys at Phillips & Associates. Our passionate attorneys have many years of working diligently to protect workers just like you, and are ready to get to work on your case. Contact us online or at (212) 248-7431 today to set up a free and confidential consultation.

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