New York State has taken a strong stance against non-disclosure agreements (NDAs) that silence employees who have experienced discrimination, harassment, or retaliation in the workplace. This article will discuss the key aspects of New York’s anti-gag clause law, why it’s important, and what it means for employers and employees.
What is an Anti-Gag Clause?
An anti-gag clause is a provision in a contract or agreement that restricts an employee’s ability to speak out about their workplace experiences, particularly concerning discrimination, harassment, or retaliation. These clauses are often found in NDAs, severance agreements, or employment contracts.
Recommendation: A Bitter Pill to Swallow: When a ‘Bad’ Job Isn’t ‘Bad’ Enough
New York’s Law
Effective January 1, 2020, New York General Obligations Law § 5-336(2) makes any provision in a contract or agreement that prevents the disclosure of factual information related to a future claim of discrimination, harassment, or retaliation void and unenforceable.
Key Exceptions
The law does allow for certain exceptions. A provision may be enforceable if it explicitly notifies the employee that they are still permitted to speak with:
- Law enforcement agencies
- The Equal Employment Opportunity Commission (EEOC)
- The New York State Division of Human Rights (DHR)
- A local human rights commission
- An attorney retained by the employee
Why is This Law Important?
This law is crucial because it empowers employees to speak out against workplace misconduct without fear of legal repercussions. It also promotes transparency and accountability in the workplace, helping to create a safer and more equitable environment for all.
Examples
Unenforceable: An NDA that states, “Employee shall not disclose any information related to their employment or termination, including any claims of discrimination or harassment.”
Enforceable: An NDA that states, “Employee shall not disclose confidential company information, except that this provision does not prohibit the employee from speaking with law enforcement, the EEOC, the DHR, a local human rights commission, or an attorney retained by the employee.”
What Does This Mean for Employers?
Employers in New York must review and revise their existing agreements to ensure compliance with the new law. It’s crucial to include the required notification language in any provisions that could be interpreted as restricting an employee’s right to speak out.
Recommendation: Legal Considerations for Defining ‘Good Reason’ in Employment Agreements: Protecting Both Employer and Employee
What Does This Mean for Employees?
Employees should be aware of their rights under this law. If you have signed an agreement that contains an unenforceable anti-gag clause, you are not legally prohibited from reporting discrimination, harassment, or retaliation to the appropriate authorities.
Disclaimer: This article is for informational purposes only and should not be taken as legal advice. If you have questions or concerns about your specific situation, it’s always best to consult with an attorney.
