Previously, many workers who have suffered from unjust termination, sexual harassment, and sexual assault were limited in court with their employee lawsuits by pre-dispute non-disclosure and non-disparagement contract clauses in employment contracts. A new federal law called the Speak Out Act has been passed by Congress and was recently signed into law by President Biden. This law prohibits the use of non-disclosure and non-disparagement agreements (collectively NDAs) to silence employees who have suffered from sexual harassment or violence in the workplace. This new law adds to the protections already afforded employees under federal and Texas law, but it has limits, which workers should understand.
The Speak Out Act Prevents Courts from Enforcing NDAs in Employee Lawsuits
This new law focuses on disputes where a worker alleges assault or sexual harassment. The law also applies to non-disparagement clauses in sexual assault or harassment cases, which includes any agreement that requires a worker to refrain from negative statements about the employer. Importantly, however, this new law stops only the enforcement of those NDAs signed before a dispute arises – not afterwards. If, for example, an employee was pressured into a secrecy agreement after a sexual assault, the Speak Out Act would not apply.
Many employee lawsuits that allege sexual harassment or assault settle before trial, which is understandable from the point of view of either an employer or an employee who wants to avoid negative publicity. But an employee’s agreement to remain silent about the alleged mistreatment is often part of the deal that is ultimately negotiated. The Speak Out Act permits confidentiality agreements that prevent one or both parties from revealing information about the claim or the settlement.
There are pros and cons to this exception. Settlement generally benefits both parties. But secrecy may leave other employees vulnerable. To be frank, employees need to know what the dangers are to protect themselves.
The law does not affect NDAs that are intended to protect trade secrets and proprietary information. Texas law is generally protective of an employer’s right to protect this information. The Speak Out Act does not apply to proprietary information.
It is also not entirely clear whether the law applies to former employees, prospective employees, and outside contractors. It also speaks of disputes without defining the term. Critics have suggested that this new federal law simply codifies existing legal rules that protect a victim’s right to report a violation of criminal law.
Other Employment Lawsuits Ignored by the Speak Out Act
Others suggest that the new law creates a specially privileged set of rights that leaves out victims of other kinds of discrimination, harassment, and assault. Consider the plight of those whose work lives are made miserable because of racial, national origin, or disability harassment. “Why not me?” is a legitimate question in the face of these kinds of harassment.
It is also true that sexual harassment may be only a part of a pattern of behavior that includes other forms of discrimination, retaliation, and breach of contract. The precise contours of the new law have yet to be fully defined. In fact, though, those contours may matter less than immediately meets the eye because of other employment discrimination protections that already exist.
The Full Picture of Worker Rights Produces Safety and Security
The collection of expanded legal protections for employees may seem piecemeal. When they are taken as a whole, however, they add to the safety and security of Texas workers and the remedies they may have available. The Speak Out Act is only the most recent addition to a collection of existing laws that protect worker rights. Both Title VII of the federal Civil Rights Act of 1964 and Chapter 21 of the Texas Labor Code protect Texas employees from employment discrimination based on sex or sexual harassment.
In March 2022, Congress enacted a law which prevents employers from enforcing pre-dispute arbitration agreements without the employee’s consent in cases involving sexual harassment and sexual assault. For a variety of reasons, arbitration often does not produce satisfactory results for employees. Since then, employers have not been permitted to require employees to arbitrate claims of sexual harassment or sexual assault. Employment lawsuits that are not strictly sexually based may still have to be arbitrated.
Effective September 2021, Texas employees who work for businesses with fewer than 15 employees have remedies for sexual harassment under Section 21.141 of the Texas Labor Code. Prior to that date, Texas employees who worked for very small companies had more limited protections.
Employment Lawsuit Definitions Redefined in Texas
In 2021, the Texas legislature also expanded the definition of employer. In this context, the term also includes a person who acts directly in the interests of an employer in relation to an employee. The law may cover harassment if it is done by an outside contractor or a fellow employee. Now supervisors, managers, HR professionals, other employees and third parties may be named individually as defendants in an employee’s sexual harassment complaint and be held personally liable for damages if they failed to respond to complaints or to deter illegal behavior in the workplace.
Our Employment Lawyers Will Help You With Workplace Sexual Harassment or Assault Problem
Our employment lawyers understand how difficult it is to deal with job-related harassment, discrimination, violence, or any number of other unfair and illegal situations at work. Contact us when workplace difficulties arise to learn if you have a legal case. Click here to get the conversation started contact Kilgore & Kilgore. Or call us at (214) 949-9099. We are here for you.
Here is More Information on Sexual Harassment and the Law
To learn more about recent changes in sexual harassment cases, click here Forced Arbitration. To read about sexual harassment cases in Texas, click here Texas law. For a general overview of Kilgore Law’s employment practice click this link Protect Your Dignity or Employment Law.