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New York Lawmakers Target Non-Disclosure Clauses in Wake of Harvey Weinstein Scandal

Two New York lawmakers are leading an effort to void the type of non-disclosure agreements that for years kept accusers of Harvey Weinstein from going public with allegations of sexual harassment.

The most recent version of the legislation, sponsored by State Sen. Brad Hoylman and Assemblywoman Nily Rozic, both Democrats, would make null and void any provision that had the effect of concealing claims of harassment, as well as other labor violations, like discrimination, retaliation, and non-payment of wages. It also includes claims that are submitted to arbitration, a process that often is covered by confidentiality provisions.

Hoylman introduced the legislation in the Senate earlier this year, in response to the allegations that surfaced against Fox News chieftain Roger Ailes.

Following a stream of allegations against Weinstein, in which a number of accusers reached settlements that included non-disclosure agreements, Hoylman added new language to the bill that expands its scope. He hopes that the public attention will give it a new sense of momentum.

“It was really the Roger Ailes sexual harassment charges that led me to introduce this bill,” he said. “We refined it since then, but it appears to be more of the same story, that NDAs force victims into silence.”

Fox News is within Hoylman’s Manhattan district, and Weinstein is among his constituents, he said.

Rozic said she decided to sponsor an Assembly version of the bill following the Weinstein revelations.

“The larger issue is that sexual harassment is pervasive, and we need to start ensuring a workplace that is productive for young men and women,” she said. “The secrecy is a lethal killer. Any contract or agreement that you enter into with an employer that has the effect of concealing the facts, or that makes you face retribution or retaliation, can be harmful for any worker.”

The non-disclosure agreements are now widespread throughout corporate America, in employment contracts and settlement deals, which is why there may be opposition from business groups. The New York legislature does not return to session until January, so it still will be months before it would be taken up by lawmakers, starting with labor committees.

In the Ailes case, a number of accusers reportedly had signed confidentiality agreements as part of settlements, but they spoke out anyway. Gretchen Carlson filed a lawsuit, but she also had a clause in her contract requiring private arbitration. She has since been speaking out against such legal language.

The Supreme Court recently heard arguments in a case that could have an impact on the extent to which employers can enforce arbitration clauses in contracts.

But the court’s rightward make up, and the GOP control of Congress, raises doubts that action on non-disclosure agreements will come at the federal level, given the affinity to relax restrictions on employers.

Daniel Hemel, assistant professor at University of Chicago Law School, recently wrote on Vox that when it comes to confidentiality clauses, “the status quo is clearly not working.

“Legal change will likely depend on whether state lawmakers have the courage and creativity to craft legislation limiting confidentiality agreements,” he wrote.

California last year passed a law prohibiting confidentiality clauses in civil settlements designed to cover acts that could be considered felony sexual offenses, which is a higher threshold than many cases of harassment. A California lawmaker said that she plans to introduce legislation in Sacramento to end confidentiality of sexual harassment settlements. 

Hoylman said “we are at the beginning of a longer conversation over how to protect not just individuals who were harassed themselves, but other individuals from this kind of behavior who may not know their boss has subjected a fellow employee to sexual harassment.”

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