Bill Text: NY A00849 | 2019-2020 | General Assembly | Amended


Bill Title: Prohibits settlement agreements in any claim involving sexual harassment or any other form of discrimination prohibited by law from containing any condition that requires the complainant to pay the defendant liquidated damages in the event that the plaintiff violates any nondisclosure agreement included in such settlement agreement.

Spectrum: Partisan Bill (Democrat 28-1)

Status: (Introduced) 2020-07-15 - print number 849d [A00849 Detail]

Download: New_York-2019-A00849-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         849--D

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                    January 11, 2019
                                       ___________

        Introduced  by M. of A. SIMOTAS, QUART, PAULIN, SEAWRIGHT, M. G. MILLER,
          LENTOL, GOTTFRIED, CRUZ, THIELE, STIRPE, SIMON, ZEBROWSKI, CYMBROWITZ,
          STERN, GLICK, FERNANDEZ, MAGNARELLI, MOSLEY,  LUPARDO,  BLAKE,  GALEF,
          EPSTEIN, MONTESANO, NIOU, NOLAN, L. ROSENTHAL, JACOBSON, ROZIC -- read
          once   and  referred  to  the  Committee  on  Judiciary  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee -- again reported from said  committee  with  amend-
          ments,  ordered reprinted as amended and recommitted to said committee
          -- recommitted to the Committee on Judiciary in accordance with Assem-
          bly Rule 3, sec. 2 --  committee  discharged,  bill  amended,  ordered
          reprinted  as amended and recommitted to said committee -- recommitted
          to the Committee on Judiciary in accordance with Assembly Rule 3, sec.
          2 -- committee discharged, bill amended, ordered reprinted as  amended
          and recommitted to said committee

        AN  ACT  to amend the general obligations law, in relation to violations
          of nondisclosure agreements in certain settlement agreements

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section 1. Section 5-336 of the general obligations law, as amended by
     2  chapter 160 of the laws of 2019, is amended to read as follows:
     3    §  5-336.  Nondisclosure  agreements. 1. (a) Notwithstanding any other
     4  law to the contrary, no employer, its officers or employees  shall  have
     5  the  authority  to include or agree to include in any settlement, agree-
     6  ment or other resolution of any claim, the factual foundation for  which
     7  involves  discrimination,  harassment,  or  retaliation, in violation of
     8  laws prohibiting discrimination, including discriminatory harassment  or
     9  retaliation, including but not limited to, article fifteen of the execu-
    10  tive law, any term or condition that would prevent the disclosure of the
    11  underlying  facts  and  circumstances  to the claim or action unless the
    12  condition of confidentiality is the complainant's preference.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01543-11-0

        A. 849--D                           2

     1    (b) Any such term or condition must be  provided  in  writing  to  all
     2  parties  in  plain  English, and, if applicable, the primary language of
     3  the complainant, and the complainant shall have up to twenty-one days to
     4  consider such term or condition. If [after twenty-one days such term  or
     5  condition] confidentiality is the complainant's preference, such prefer-
     6  ence  shall be memorialized in an agreement signed by all parties. For a
     7  period of at least seven days following the execution of such agreement,
     8  the complainant may revoke the agreement, and the  agreement  shall  not
     9  become  effective  or  be  enforceable  until such revocation period has
    10  expired.
    11    (c) Any such term or condition shall be void to  the  extent  that  it
    12  prohibits  or  otherwise restricts the complainant from: (i) initiating,
    13  testifying, assisting, complying with a subpoena from, or  participating
    14  in  any manner with an investigation conducted by the appropriate local,
    15  state, or federal agency; or (ii) filing or disclosing any facts  neces-
    16  sary  to receive unemployment insurance, Medicaid, or other public bene-
    17  fits to which the complainant is entitled.
    18    2. Notwithstanding any provision of law to the contrary, any provision
    19  in a contract or other agreement between an employer or an agent  of  an
    20  employer  and  any  employee  [or],  potential  employee, or independent
    21  contractor of that employer entered into on or after January first,  two
    22  thousand  twenty,  that  prevents  the disclosure of factual information
    23  related to any future claim of discrimination is void and  unenforceable
    24  unless such provision notifies the employee [or], potential employee, or
    25  independent  contractor  that  it  does  not  prohibit  [him or her] the
    26  complainant from speaking with law  enforcement,  the  equal  employment
    27  opportunity commission, the state division of human rights, the attorney
    28  general,  a local commission on human rights, or an attorney retained by
    29  the employee or potential employee.
    30    3. Notwithstanding any other law to the contrary, no  release  of  any
    31  claim,  the  factual  foundation  for  which involves unlawful discrimi-
    32  nation, including discriminatory harassment, or  retaliation,  shall  be
    33  enforceable, if as part of the agreement resolving such claim:
    34    (a)  the  complainant  is  required  to  pay  liquidated  damages  for
    35  violation of a nondisclosure clause or nondisparagement clause;
    36    (b) the complainant is required to forfeit all or part of the  consid-
    37  eration  for  the  agreement, for violation of a nondisclosure clause or
    38  nondisparagement clause; or
    39    (c) it contains or requires any affirmative statement,  assertion,  or
    40  disclaimer  by  the  complainant  that  the  complainant was not in fact
    41  subject to unlawful discrimination, including discriminatory harassment,
    42  or retaliation.
    43    § 2. This act shall take effect immediately and shall apply to  agree-
    44  ments entered on or after such date.
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