Bill Text: NY S08914 | 2021-2022 | General Assembly | Introduced

---

Bill Title: Prohibits provisions in any waiver, settlement, agreement or other resolution of any claim where the foundation for which is an alleged violation of article fifteen of the executive law or the labor law, that prevent the disclosure of the employee's workplace experience with the employer.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2022-04-28 - REFERRED TO JUDICIARY [S08914 Detail]

Download: New_York-2021-S08914-Introduced.html

---

                STATE OF NEW YORK
        ________________________________________________________________________

                                          8914

                    IN SENATE

                                     April 28, 2022
                                       ___________

        Introduced  by  Sen.  BIAGGI -- read twice and ordered printed, and when
          printed to be committed to the Committee on Judiciary

        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 article fifteen of the execu-
    18  tive law or the labor law, any term or condition that would prevent  the
    19  disclosure  of  the  [underlying facts and circumstances to the claim or
    20  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.
    24    (b)  [Any  such  term  or condition must be provided in writing to all
    25  parties in plain English, and, if applicable, the  primary  language  of
    26  the  complainant,  and  the  complainant  shall  have twenty-one days to
    27  consider such term or condition. If after twenty-one days such  term  or
    28  condition  is  the  complainant's  preference,  such preference shall be

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15374-02-2
        S. 8914                             2

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