On November 16, 2022, the U.S. House of Representatives passed the Speak Out Act (the “Act”), which President Biden is expected to sign into law. The bipartisan legislation, passed by the Senate on September 29, 2022, limits the enforceability of pre–dispute nondisclosure and nondisparagement clauses relating to sexual assault and sexual harassment claims.

For purposes of the Act:

• a nondisclosure clause means “a provision in a contract or agreement that requires 1 or more parties to the contract or agreement not to make a negative statement about another party that relates to the contract, agreement, claim, or case”; and
• a nondisparagement clause means “a provision in a contract or agreement that requires the parties to the contract or agreement not to disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the terms and conditions of the contract or agreement.”

The Act includes a carveout for protecting trade secrets and proprietary information—the basis for many pre-dispute nondisclosure and nondisparagement clauses in employment agreements.

Importantly, the Act applies only to nondisclosure and nondisparagement clauses in agreements entered before a sexual assault or sexual harassment dispute has arisen. Given this limitation, the Act would not apply to separation and settlements agreements resolving claims an employee has already raised. However, employers may want to consider adding an exemption in standard release...

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