On December 7, 2022, President Biden signed the Speak Out Act limiting enforceability of predispute nondisclosure and non-disparagement contract clauses relating to disputes involving sexual assault and sexual harassment.
The key paragraph of the Act reads: "With respect to a sexual assault dispute or sexual harassment dispute, no nondisclosure clause or non-disparagement clause agreed to before the dispute arises shall be judicially enforceable in instances in which conduct is alleged to have violated Federal, Tribal, or State law".
The Act applies retroactively to all non-disclosure agreements that were already signed prior to the passage of the legislation.
Also, the Act does not prevent a state from passing more restrictive laws.
Finally, The Act does not apply to a non-disclosure agreement agreed to after the harassment occurred. Accordingly a nondisclosure agreement in connection with the settlement of a sexual harassment or sexual assault claim is still enforceable.
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