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A02555 Summary:

BILL NOA02555A
 
SAME ASSAME AS S04233
 
SPONSORGonzalez-Rojas
 
COSPNSRGallagher, Davila, Cruz, Glick, Simon, Cook, Epstein, McDonald, Shimsky, Dinowitz, Kelles, Shrestha, Levenberg, Bores, Zaccaro, Raga, McMahon, Seawright, Hevesi
 
MLTSPNSR
 
Amd §5-336, Gen Ob L
 
Prohibits provisions in any waiver, settlement, agreement or other resolution of any claim where the foundation for which is an alleged violation of the labor law or article fifteen of the executive law, that prevent the disclosure of the employee's workplace experience with the employer.
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A02555 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A2555A
 
SPONSOR: Gonzalez-Rojas
  TITLE OF BILL: An act to amend the general obligations law, in relation to nondisclo- sure and non-disparagement agreements   PURPOSE: To prohibit non-disclosure and non-disparagement agreements.   SUMMARY OF PROVISIONS: Section 1 amends section 5-336 of the general obligations law to prohib- it employers from including non-disclosure or non-disparagement agree- ments in a waiver, settlement, agreement or other resolution of an alleged violation of the human rights law or labor law, or otherwise preventing an employee from disclosing their experience with the employ- er. Such agreement may include language restricting an employer from disclosing the identity of an employee and the circumstances surrounding their complaint. Additionally, an employer may not include language in a contract or application for employment as a condition of employment that prohibits disclosure of information relating to any future alleged violations of the human rights law or labor law or their experience with the employer. Section 2 provides the effective date.   JUSTIFICATION: Although New York has made significant strides in protecting victims of sexual harassment and workplace discrimination, our laws still allow harmful non-disclosure agreements (NDAs) to be included in settlement agreements and in employment contracts. Under current law, a settlement may only include an NDA if it is the victim's preference. But in prac- tice, many victims of sexual harassment and discrimination are pressured into signing an NDA, often to receive compensation for the harm they experienced. While many victims of sexual harassment and workplace discrimination prefer not to disclose their experiences publicly, NDAs deny them that choice in the future and often prohibit them from even speaking with a parent or close friend about their experience. Further- more, NDAs prevent victims from warning future employees about a known harasser or speaking publicly about their experience, if they so choose. This legislation would align New York with Washington, New Jersey, and California which have all recently passed legislation to ban NDAs for workplace discrimination cases. This bill bars employers from including an NDA or non-disparagement agreement in a waiver, settlement, agreement or other resolution to an alleged violation of the human rights law or labor law. It also prohibits employers from otherwise preventing an employee from disclosing their experience with the employer. Agreements may still include language barring an employer from revealing the iden- tity of an employee or the circumstances around their complaint provid- ing important protection for victims who want privacy. The bill also prohibits employers from requiring a prospective employee to sign away their right to speak about workplace experiences or future discrimination as a condition of employment. It does not prohibit an employer from protecting trade secrets, proprietary information, or other confidential information - the original purpose of NDAs.   LEGISLATIVE HISTORY: 2022: A10021 reported to judiciary committee   STATE AND LOCAL FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: This act shall take effect on the sixtieth day after it shall become law and apply to all applicable contracts signed, renewed, or modified after the effective date.
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A02555 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         2555--A
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 26, 2023
                                       ___________
 
        Introduced  by  M. of A. GONZALEZ-ROJAS, GALLAGHER, DAVILA, CRUZ, GLICK,
          SIMON, COOK -- read once and referred to the Committee on Judiciary --
          committee discharged, bill amended, ordered reprinted as  amended  and
          recommitted to said committee
 
        AN  ACT  to amend the general obligations law, in relation to nondisclo-
          sure and non-disparagement 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 and non-disparagement agreements.  1. As used
     4  in this section, the following terms shall have the following meanings:
     5    (a) "Employer" shall mean all public and private employers within  the
     6  state.
     7    (b)  "Employee" shall mean all public and private employees, including
     8  applicants for employment, former employees,  paid  or  unpaid  interns,
     9  volunteers  and  natural  persons employed as independent contractors to
    10  carry out work in furtherance of an employer's business  enterprise  who
    11  are not themselves employers.
    12    2. (a) Notwithstanding any other law to the contrary, no employer, its
    13  officers,  agents  or  employees  shall have the authority to include or
    14  agree to include in any waiver, settlement, agreement  or  other  resol-
    15  ution of any claim, the factual foundation for which involves [discrimi-
    16  nation,  in  violation of laws prohibiting discrimination, including but
    17  not limited to,] an alleged violation of the labor  law  or  of  article
    18  fifteen  of  the executive law, any term or condition that would prevent
    19  the disclosure of the [underlying facts and circumstances to  the  claim
    20  or  action  unless the condition of confidentiality is the complainant's
    21  preference] employee's workplace experience with the employer. Any  such
    22  term  or condition shall be deemed against public policy and unenforcea-
    23  ble against an employee.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04830-03-3

        A. 2555--A                          2
 
     1    (b) [Any such term or condition must be provided  in  writing  to  all
     2  parties  in  plain  English, and, if applicable, the primary language of
     3  the complainant, and the  complainant  shall  have  twenty-one  days  to
     4  consider  such  term or condition. If after twenty-one days such term or
     5  condition  is  the  complainant's  preference,  such preference shall be
     6  memorialized in an agreement signed by all parties. For a period  of  at
     7  least  seven  days  following  the  execution  of  such  agreement,  the
     8  complainant may revoke the agreement, and the agreement shall not become
     9  effective or be enforceable until such revocation period has expired.
    10    (c) Any such term or condition shall be void to  the  extent  that  it
    11  prohibits  or  otherwise restricts the complainant from: (i) initiating,
    12  testifying, assisting, complying with a subpoena from, or  participating
    13  in  any manner with an investigation conducted by the appropriate local,
    14  state, or federal agency; or (ii) filing or disclosing any facts  neces-
    15  sary  to receive unemployment insurance, Medicaid, or other public bene-
    16  fits to which the complainant  is  entitled.]  The  provisions  of  this
    17  subdivision  do not prohibit the inclusion or enforcement of a provision
    18  in any agreement that precludes the disclosure of  any  monetary  amount
    19  paid in settlement of a claim.
    20    (c)  The  provisions of this subdivision do not prohibit the inclusion
    21  or enforcement of a provision in any agreement that restricts an employ-
    22  er from revealing the identity of the employee and the existence of  and
    23  circumstances surrounding the employee's complaint about workplace prac-
    24  tices, except as required by law.
    25    (d)  Agreements  that  settle  legal  claims  between  an employer and
    26  employee shall state in bold language that the employee is  entitled  to
    27  receive a copy of the agreement in their primary language.
    28    [2.]  3.  Notwithstanding  any  provision  of law to the contrary, any
    29  provision in a contract or other agreement or application for employment
    30  between an employer or an agent of  an  employer  and  any  employee  or
    31  potential  employee  of that employer entered into as a condition of the
    32  employee's employment, on or after January first, two thousand  [twenty]
    33  twenty-four, that prevents the disclosure of factual information related
    34  to  any future [claim of discrimination] alleged violations of the labor
    35  law or of article fifteen of the executive law,  or  that  prevents  the
    36  disclosure  of the employee's workplace experience with the employer, is
    37  void and unenforceable [unless such provision notifies the  employee  or
    38  potential  employee  that  it does not prohibit him or her from speaking
    39  with law enforcement, the equal employment opportunity  commission,  the
    40  state  division  of human rights, a local commission on human rights, or
    41  an attorney  retained  by  the  employee  or  potential  employee].  The
    42  provisions  of  this  subdivision  shall  not  prohibit  an employer and
    43  employee from agreeing to protect trade  secrets,  proprietary  informa-
    44  tion,   or  confidential  information  that  does  not  involve  alleged
    45  violations of the labor law or of article  fifteen  of   the   executive
    46  law.   Any such confidentiality or nondisclosure agreement shall include
    47  a statement that the employee has the right to speak with  law  enforce-
    48  ment, the equal employment opportunity commission, the division of human
    49  rights,  any local commission on human rights, the attorney general, any
    50  regulatory agency that investigates workplace conditions, or an attorney
    51  retained by the employee or potential employee.
    52    § 2. This act shall take effect on the sixtieth  day  after  it  shall
    53  have  become  a  law and shall apply to all applicable contracts entered
    54  into, renewed, modified or amended on or after such effective date.
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