Employers in New York and New Jersey often have policies prohibiting sexual harassment in the workplace. Sadly, not everyone abides by these rules, and some will sexually harass a co-worker. Those who are sexually harassed in the workplace may decide to find employment elsewhere. If so, they may work out a settlement with their current employer that includes a non-disclosure agreement. The law protects employees by limiting the scope of what a non-disclosure agreement can do.
Non-disclosure agreements and settlements
New York law states that a non-disclosure agreement cannot prevent an employee from disclosing the facts of their sexual harassment claim, unless the employee agrees to allow such a prohibition. For a non-disclosure agreement to be valid, the employee must be given 21 days to consider whether they want to remain confidential. If the employee does want the facts regarding their sexual harassment claim to stay “off the record,” there must be two separate agreements: one stating the employee wishes for the facts surrounding their sexual harassment claim to remain confidential, and a second that includes this preference into the general settlement agreement as a whole.
Non-disclosure agreements and investigations
State law also provides that even if an employee chooses confidentiality, non-disclosure provisions in a sexual harassment settlement cannot stop the employee from participating in a government investigation into the alleged acts of harassment. If a settlement agreement tries to prohibit disclosures made as part of a government investigation, then the entire settlement agreement is invalid and cannot be enforced.
Employers may prefer that employees keep confidential the facts surrounding their allegations of sexual harassment in the workplace. However, employees have the right to reject non-disclosure agreements in such circumstances. Moreover, employees have the right to participate in a government investigation of their sexual harassment claims if they wish. This way employees are protected if they choose to make known the facts surrounding their claim of sexual harassment.