Expands Ban on NDAs in Employment Contracts to Include Non-Disparagement Clauses
More than three years after legislation was signed into law banning the use of non-disclosure agreements in employment contracts that silenced abuse victims, Senator Declan O’Scanlon has introduced a bill closing a recently exposed loophole that can still be used to mute sexual assault and harassment victims and shield predators.
More than three years after a law was signed banning the silencing of abuse victims with non-disclosure agreements in employment contracts, Sen. Declan O’Scanlon has introduced a bill closing a recently exposed loophole that can still be used to mute assault and harassment victims and shield predators. (SenateNJ.com)
O’Scanlon’s bipartisan measure, S-2930, expands prohibitions established by S-121 in 2019. Also sponsored by Senator Andrew Zwicker, it bars provisions in contracts that waive certain rights or remedies and emphasizes that the current law on non-disclosures also bars certain non-disparagement provisions in employment contracts.
“When the Legislature overwhelmingly approved doing away with non-disclosure deals, I don’t think anybody envisioned that non-disparagement clauses would rise up to circumvent the ban and add insult to injury for those who have been harmed,” said O’Scanlon (R-13). “Legal maneuvers that shield culprits and obscure wrong doings only perpetuate the long history of workplace malfeasance. It is obvious the Legislature must act now to close this loophole and safeguard victims.”
“Non-disclosure agreements (NDA) have no place for those that may been sexually harassed or faced discrimination or retaliation on the job. While legislation passed in 2019 offers protections against so-called classic NDA’s, the use of ‘non-disparagement’ agreements are an equally inappropriate way to squash a person’s voice and take away basic rights. It must be prohibited, and this legislation will do so,” said Senator Zwicker (D-16).
The bill was prompted by an appellate court decision last month that the 2019 ban on non-disclosure agreements does not impact the enforceability of non-disparagement pacts, according to a published report.
A former Neptune Township police sergeant who settled a discrimination suit with the township in July 2020, interviewed by NBC New York after the agreement. As part of the deal, the former officer and the township were bound by a non-disparagement agreement, and the township accused her of violating the pact with the interview.
“This new legislation will restore the protections intended in the original law. There is no place for clauses that allow bad actors to hide behind protective covenants,” O’Scanlon said. “Victims have been silenced for too long. These protections will benefit all workers but let’s face it, it’s usually women who are harassed or abused in the workplace. Our system’s silencing of victims and protection of abusers stops with this legislation.”