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

NOTE: There are more recent revisions of this legislation. Read Latest Draft
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 - Dead) 2020-07-15 - print number 849d [A00849 Detail]

Download: New_York-2019-A00849-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         849--C

                               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, CRESPO, 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

        AN  ACT to amend the general obligations law, in relation to independent
          consideration required for certain provisions in settlement agreements
          and 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. The general obligations law is  amended  by  adding  a  new
     2  section 5-1117 to read as follows:
     3    §  5-1117.  Independent  consideration  required for settlement agree-
     4  ments. Independent consideration shall be required  for  each  confiden-
     5  tiality  provision  included in a settlement agreement. For the purposes
     6  of this section, "independent consideration"  shall  mean  something  of
     7  value, either a promise, an act or an object that is offered in exchange
     8  for each confidentiality provision.
     9    § 2. Section 5-336 of the general obligations law, as amended by chap-
    10  ter 160 of the laws of 2019, is amended to read as follows:
    11    §  5-336.  Nondisclosure  agreements. 1. (a) Notwithstanding any other
    12  law to the contrary, no employer, its officers or employees  shall  have
    13  the  authority  to include or agree to include in any settlement, agree-
    14  ment or other resolution of any claim, the factual foundation for  which

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01543-09-0

        A. 849--C                           2

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