Are NDAs on the way out? Action in Congress and across a number of states indicate that could be the case — potentially along with mandatory arbitration.
On Sept. 29 — about two weeks before #MeToo’s fifth anniversary — the Senate passed the SPEAK Out Act, which invalidates nondisclosure and nondisparagement agreements in cases of sexual assault and sexual harassment. The bill, sponsored by Kirsten Gillibrand, D-N.Y., and co-sponsored by a range of Republicans and Democrats including Lindsey Graham, R-S.C., and Amy Klobuchar, D-Minn., passed by unanimous consent. The bill now awaits consideration by the House.
Bipartisanship may be rare in 2022, but the SPEAK Out Act is at least the second bipartisan bill dealing with employment law to receive such support in Congress this year. In February, lawmakers passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act — also known as the #MeToo Bill — which invalidated mandatory arbitration agreements for employees making claims of sexual assault or sexual harassment, allowing them to pursue them in court.
What accounts for the cooperation across the aisle? “I don’t think anyone is on the side of the Harvey Weinsteins,” Aaron Goldstein, partner at Dorsey & Whitney, told HR Dive. “Everyone’s on the same page.”
The action on arbitration and NDAs comes at a unique time politically, Goldstein noted, in which Republicans are not always automatically considered to be on the side of corporations, and Democrats...
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