On November 16, 2022, in a 315-109 vote, the U.S. House of Representatives passed the bipartisan “Speak Out Act,” previously passed by a unanimous Senate on September 29. President Joe Biden is anticipated to sign it, as the White House indicated strong support in a statement about the Speak Out Act on November 14, 2022.
Many employees are required to sign employment agreements that include nondisclosure and nondisparagement clauses at the outset of employment. Nondisclosure agreements (“NDAs”) are often intended to protect confidential and proprietary business information, or trade secrets. Nondisparagement clauses are intended to ensure that employees (even disgruntled ones) will not publicly bad-mouth the company. Under the Speak Out Act, nondisclosure and nondisparagement agreements (or clauses in broader agreements) entered into before a dispute arises (e.g., on the first day of employment) will be deemed unenforceable as applied to sexual assault and sexual harassment disputes, so that employees may reveal and discuss their experiences with sexual harassment or assault without fear of consequences, when they otherwise would be obligated to remain silent.
The Speak Out Act is limited in scope, in that it only applies to sexual assault and sexual harassment disputes. It does not apply to NDA provisions regarding trade secrets or business information, NDAs signed in connection with a settlement or as part of a severance agreement, or complaints other than sexual...
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