In 2019, the New York State Legislature championed a host of employment laws that strengthen protections for employees. One of those laws codified new requirements for non-disclosure agreements, which are effective as of October 11, 2019. To ensure enforceability of non-disclosure provisions, employers must account for the following provisions:
- Non-disclosure agreements cannot prevent the confidentiality of facts underlying any discrimination claim, unless confidentiality is the complainant’s preference. Previously, in 2018, the legislature had barred confidentiality provisions in settlement of sexual harassment claims.
- If a complainant prefers confidentiality as described above, the employer must provide the confidentiality provision to that employee in plain English, or in the complainant’s primary language. The complainant has 21 days to consider the confidentiality provision, and 7 days after execution to revoke it. The confidentiality provision is not effective until the expiration of the revocation period, which is unlike the consideration and revocation applicable to releases of age discrimination claims under federal law; in the latter instance, employees are afforded 21 days to consider release of age claims, but are not required to take the full 21 days.
- Confidentiality provisions are void to the extent they prohibit a complainant from (1) complying with a subpoena, or participating in an investigation by local, state, or federal agencies, or (2) disclosing facts to file for public benefits to which the complainant is entitled (i.e., unemployment insurance or Medicaid).
- Finally, as of January 1, 2020, “any provision . . . that prevents the disclosure of factual information related to any future claim of discrimination is void and unenforceable unless such provision notifies the employee or potential employee that it does not prohibit him or her from speaking with law enforcement, the Equal Employment Opportunity Commission, the New York State Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.”
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