On November 16, 2022, the U.S. House of Representatives passed the Speak Out Act (SOA), which prohibits the use of nondisclosure and nondisparagement agreements between employers and current, former and prospective employees, as well as independent contractors in cases of sexual harassment and assault. The SOA passed the Senate on September 29, 2022. It has received bipartisan support, and is currently before President Biden, who expressed his support for its passage via a Statement of Administration Policy.

According to the SOA, Congress found the following:

1. Sexual harassment and assault remain pervasive in the workplace and throughout civic society, affecting millions of Americans.
2. Eighty-one percent of women and 43 percent of men have experienced some form of sexual harassment or assault throughout their lifetime.
3. One in 3 women has faced sexual harassment in the workplace during her career, and an estimated 87 to 94 percent of those who experience sexual harassment never file a formal complaint.
4. Sexual harassment in the workplace forces many women to leave their occupation or industry, or pass up opportunities for advancement.
5. In order to combat sexual harassment and assault, it is essential that victims and survivors have the freedom to report and publicly disclose their abuse.
6. Nondisclosure and nondisparagement provisions in agreements between employers and current, former, and prospective employees, and independent contractors, and between providers of goods and services and consumers, can perpetuate illegal conduct by silencing those who are survivors of illegal sexual harassment and assault or illegal retaliation, or have knowledge of such conduct, while shielding perpetrators and enabling them to continue their abuse.
7. Prohibiting nondisclosure and nondisparagement clauses will empower survivors to come forward, hold perpetrators accountable for abuse, improve transparency around illegal conduct, enable the pursuit of justice, and make workplaces safer and more productive for everyone.

The SOA follows another law signed by President Biden which ended forced arbitration in cases involving sexual harassment or assault. The SOA applies only to contracts signed before a dispute arises, not afterward, and does not cover other workplace misconduct, such as age and race discrimination. The SOA does not prohibit an employer from protecting trade secrets or proprietary information.

In addition, the SOA does not prohibit a state or locality from enforcing its law governing nondisclosure or nondisparagement clauses that is at least as protective of the right of an individual to speak freely as provided by the SOA. Certain states such as California, Illinois and New York have their own laws.

On July 12, 2022, Governor Ige signed Act 288 (HB 2495, HD1 SD1) prohibiting an employer from entering into or requiring an employee to enter into a nondisclosure agreement pertaining to sexual harassment or sexual assault occurring in the workplace, at work-related events, between employees, or between the employer and an employee. Click here to read our article on the Hawaii law.

Takeaway

Hawaii employers should already be in compliance with Act 288 regarding nondisclosure agreements. Additionally, as President Biden is expected to sign the SOA, employers should take the time now to review their pre-hire and standard employment agreements to ensure compliance with the SOA as well. Notable differences between Hawaii law and the SOA include coverage of nondisparagement clauses, as well as applicability to independent contractors.

Employers should seek with legal guidance to ensure compliance of their employment agreements with federal and state laws.