Bill Text: NY A05580 | 2021-2022 | General Assembly | Introduced

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Bill Title: Prohibits settlement agreements in any claim involving sexual harassment or any other form of discrimination prohibited by law from containing any condition that requires the complainant to pay the defendant liquidated damages in the event that the plaintiff violates any nondisclosure agreement included in such settlement agreement.

Spectrum: Partisan Bill (Democrat 11-0)

Status: (Introduced - Dead) 2022-01-05 - referred to judiciary [A05580 Detail]

Download: New_York-2021-A05580-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          5580

                               2021-2022 Regular Sessions

                   IN ASSEMBLY

                                    February 22, 2021
                                       ___________

        Introduced  by M. of A. ROZIC -- read once and referred to the Committee
          on Judiciary

        AN ACT to amend the general obligations law, in relation  to  violations
          of nondisclosure agreements in certain settlement agreements

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Section 5-336 of the general obligations law, as amended by
     2  chapter 160 of the laws of 2019, is amended to read as follows:
     3    § 5-336. Nondisclosure agreements. 1. (a)  Notwithstanding  any  other
     4  law  to  the contrary, no employer, its officers or employees shall have
     5  the authority to include or agree to include in any  settlement,  agree-
     6  ment  or other resolution of any claim, the factual foundation for which
     7  involves discrimination, harassment, or  retaliation,  in  violation  of
     8  laws  prohibiting discrimination, including discriminatory harassment or
     9  retaliation, including but not limited to, article fifteen of the execu-
    10  tive law, any term or condition that would prevent the disclosure of the
    11  underlying facts and circumstances to the claim  or  action  unless  the
    12  condition of confidentiality is the complainant's preference.
    13    (b)  Any  such  term  or  condition must be provided in writing to all
    14  parties in plain English, and, if applicable, the  primary  language  of
    15  the complainant, and the complainant shall have up to twenty-one days to
    16  consider  such term or condition. If [after twenty-one days such term or
    17  condition] confidentiality is the complainant's preference, such prefer-
    18  ence shall be memorialized in an agreement signed by all parties. For  a
    19  period of at least seven days following the execution of such agreement,
    20  the  complainant  may  revoke the agreement, and the agreement shall not
    21  become effective or be enforceable  until  such  revocation  period  has
    22  expired.
    23    (c)  Any  such  term  or condition shall be void to the extent that it
    24  prohibits or otherwise restricts the complainant from:  (i)  initiating,
    25  testifying,  assisting, complying with a subpoena from, or participating

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02932-01-1
        A. 5580                             2

     1  in any manner with an investigation conducted by the appropriate  local,
     2  state,  or federal agency; or (ii) filing or disclosing any facts neces-
     3  sary to receive unemployment insurance, Medicaid, or other public  bene-
     4  fits to which the complainant is entitled.
     5    2. Notwithstanding any provision of law to the contrary, any provision
     6  in  a  contract or other agreement between an employer or an agent of an
     7  employer and any  employee  [or],  potential  employee,  or  independent
     8  contractor  of that employer entered into on or after January first, two
     9  thousand twenty, that prevents the  disclosure  of  factual  information
    10  related  to any future claim of discrimination is void and unenforceable
    11  unless such provision notifies the employee [or], potential employee, or
    12  independent contractor that it  does  not  prohibit  [him  or  her]  the
    13  complainant  from  speaking  with  law enforcement, the equal employment
    14  opportunity commission, the state division of human rights, the attorney
    15  general, a local commission on human rights, or an attorney retained  by
    16  the employee or potential employee.
    17    3.  Notwithstanding  any  other law to the contrary, no release of any
    18  claim, the factual foundation  for  which  involves  unlawful  discrimi-
    19  nation,  including  discriminatory  harassment, or retaliation, shall be
    20  enforceable, if as part of the agreement resolving such claim:
    21    (a)  the  complainant  is  required  to  pay  liquidated  damages  for
    22  violation of a nondisclosure clause or nondisparagement clause;
    23    (b)  the complainant is required to forfeit all or part of the consid-
    24  eration for the agreement, for violation of a  nondisclosure  clause  or
    25  nondisparagement clause; or
    26    (c)  it  contains or requires any affirmative statement, assertion, or
    27  disclaimer by the complainant that  the  complainant  was  not  in  fact
    28  subject to unlawful discrimination, including discriminatory harassment,
    29  or retaliation.
    30    §  2. This act shall take effect immediately and shall apply to agree-
    31  ments entered on or after such date.