The Speak Out Act and Workplace NDAs: What New Jersey Employees Should Know

Non-disclosure agreements (NDAs) have long been used in employment settings to protect confidential business information. In recent years, however, lawmakers have taken steps to limit the use of NDAs in cases involving sexual harassment and sexual assault. The federal Speak Out Act represents a significant development in this area, particularly for employees navigating workplace disputes.

Employees reviewing confidentiality clauses often consult Employment Lawyer guidance to understand how evolving laws may affect their rights before signing an agreement.

What Is the Speak Out Act?

The Speak Out Act is a federal law that restricts the enforceability of certain pre-dispute non-disclosure and non-disparagement clauses in cases involving sexual assault or sexual harassment. Specifically, it prevents employers from enforcing confidentiality provisions that were signed before a dispute arose and that would otherwise prohibit employees from discussing allegations of sexual misconduct.

This law reflects a broader policy shift toward transparency and accountability in workplace harassment cases.

How NDAs Have Traditionally Been Used

Employers often include NDAs in employment contracts, arbitration agreements, and severance packages. Historically, these provisions have required employees to keep certain information confidential, including allegations of misconduct.

While protecting trade secrets and proprietary information remains lawful and appropriate, NDAs aimed at silencing victims of harassment or assault have faced increasing scrutiny.

Limitations Under the Speak Out Act

Under the Act, pre-dispute confidentiality clauses relating to sexual harassment or assault claims are generally unenforceable. This means that employees cannot be legally barred from discussing such allegations merely because they signed an NDA before the issue arose.

However, the Act does not invalidate all confidentiality agreements. It primarily targets provisions entered into before a dispute exists. Post-dispute settlement agreements may still include confidentiality terms under certain circumstances.

New Jersey’s Broader Protections

New Jersey law already contains robust protections limiting confidentiality provisions in settlement agreements involving discrimination, retaliation, and harassment claims. In many respects, state law goes further than federal law by restricting clauses that conceal details of discrimination settlements.

The interaction between federal and state law can be complex. Employees should evaluate both frameworks when reviewing employment or severance agreements.

Non-Disparagement Clauses

Many agreements include non-disparagement provisions that prohibit negative statements about the employer. The Speak Out Act may affect the enforceability of such clauses when applied to sexual harassment or assault claims.

Careful review of the scope and language of these provisions is essential to understanding what speech may be restricted and what protections apply.

Arbitration Agreements and Confidentiality

In addition to the Speak Out Act, other federal legislation has addressed mandatory arbitration in sexual harassment and assault cases. Employers may no longer require arbitration of such claims in certain circumstances, giving employees greater access to public court proceedings.

These developments signal a broader legal shift toward ensuring transparency in workplace misconduct matters.

Practical Considerations Before Signing

Before signing any agreement containing confidentiality or non-disparagement provisions, employees should consider:

• Whether the clause applies to future disputes
• The scope of information covered
• Potential impact on reporting to government agencies
• Interaction with New Jersey’s anti-discrimination statutes

Understanding these issues in advance can prevent unintended waiver of important rights.

Focused Employment Law Review

Castronovo & McKinney, LLC concentrates exclusively on employment law matters throughout New Jersey. The firm reviews employment agreements, severance packages, and settlement documents to ensure compliance with evolving federal and state laws.

As legal standards continue to evolve, employees should not assume that every NDA provision is enforceable. Careful legal analysis can clarify what protections apply and safeguard the right to speak about unlawful workplace conduct.

Castronovo & McKinney, LLC
71 Maple Ave, Morristown, NJ 07960
Phone: 973-920-7888
Email: [email protected]
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