While many (though typically not women) were shocked at the breadth of workplace sexual harassment, the “#Metoo” movement which has been in the news for the last few years, the New Jersey legislature in response took action to attempt to curb the “hushing up” of victims of sexual predators in the workplace. New Jersey Governor Philip D. Murphy signed into law Bill S-121 on March 18, 2019, which attempts to despoil non-disclosure agreements in settlements in sexual harassment claims and other claims brought under the New Jersey Law Against Discrimination. The movement of “#Metoo” was motivated by the sexual harassment victims but had the unintended effect of despoiling non-disclosure agreements in all types of settlements of employment discrimination matters brought under the New Jersey Law Against Discrimination (NJLAD) , i.e., race, sexual orientation, disability, age discrimination, etc., lawsuits.
Settlement Agreements of claims of violations of the NJLAD including sexual harassment brought by employees against their employers typically contained these non-disclosure clauses (insisted upon the Employer) as a required element of the settlement. If the Plaintiff were to violate the non-disclosure clauses, there were substantial economic penalties. The Defendants insisted upon these clauses in order that after a matter was settled, the alleged facts of the discrimination or harassment would not continue to be spoken or written about in social media or to other persons.
Bill S-121 amended the NJLAD. Bill S-121 applies to all agreements entered into on or after March 18, 2019 but will not apply retroactively. Non-disclosure clauses may still be written into settlement agreements, but the non-disclosure clauses entered into a settlement agreement on or after March 18, 2019 are non-enforceable against employees in NJLAD claims.
Bill S121 mandates in the event that the employee does not abide by the non-disclosure clause and releases through social media or other communication enough facts to identify the employer, then the non-disclosure provisions against the employer are also automatically unenforceable. When this happens, the employer may make public its version of the facts and disclose information about the employee, which would otherwise be prohibited had not the employee first chose to not abide by the non-disclosure clause.
Part of a typical non-closure clause states something as the following:
Plaintiff [Employee] agrees to keep confidential and make no voluntary disclosure of the terms of this Agreement and/or the existence thereof, to any person or entity of any kind or identity whatsoever. Plaintiff further agrees not to disclose, either directly or indirectly, nor disclose through social media any information whatsoever regarding the alleged factual basis for any and all claims against [Employer] which are the subject of this Agreement, to any person or entity, including, but not limited to, members of the media, present, prospective or former employees of [Employer] , their successors and assigns, affiliates, subsidiaries or divisions, depositors and other members of the public. Plaintiff further agrees that she will make no statements of a defamatory nature to anyone, including the above-named persons and/or entities, through social media or any other communication.
Proponents of Bill S-121's non-disclosure NJLAD amendment sought this new legislation so that victims of workplace sexual harassment essentially would not have a gag-order on their allegations of sexual harassment when they settled a case for money; that they should not have to choose between accepting money and no longer speaking about the harassment. Some victims of sexual harassment and other forms of discrimination, just want to move forward; once they choose to settle, they don’t want to keep speaking about it and just want to close the chapter behind them.
If there is a non-disclosure in their settlement agreement, the employee does not have to keep silent pursuant to Bill S-121, because as stated above, the non-disclosure is not enforceable against the employee. However, for those employees or former employees who choose to not remain silent after signing such an agreement, they should keep in mind that the employer then is not bound to non-disclose as to their version of the facts that go against the employee. If this happens, it could have a potential chilling effect on successfully securing new employment in some situations.
Sexual harassment and other discrimination litigation can be lengthy and complex. This firm, Hope A. Lang, Attorney at Law, has successfully represented both corporate and blue collar plaintiffs, over the years against state governmental entities and private businesses and has a successful track record in recovering money for its clients. This firm has successfully represented both male and female victims of sexual harassment and has a successful track record in recovering money for its clients.
If You Are Thinking of Simply Resigning
If you are thinking of simply resigning because of sexual harassment or other discrimination in your workplace and/or because you notified your employer about the harassment and no action was taken, you should contact an attorney experienced in employment law before you do so.
What You Can Do
I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons, both female and male, who were subjected to sexual harassment discrimination and in recovering money for them. If you are being subjected to workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.
Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in southern, central, western and northern NJ to meet with clients.