Assembly Bill A849D

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    849
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             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 -- read once and  referred
   to the Committee on Judiciary
 
 AN  ACT to amend the general obligations law, in relation to independent
   consideration required for certain provisions in settlement agreements
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  general  obligations  law is amended by adding a new
 section 5-1117 to read as follows:
   § 5-1117. INDEPENDENT CONSIDERATION  REQUIRED  FOR  SETTLEMENT  AGREE-
 MENTS.  INDEPENDENT  CONSIDERATION  SHALL BE REQUIRED FOR EACH CONFIDEN-
 TIALITY PROVISION INCLUDED IN A SETTLEMENT AGREEMENT. FOR  THE  PURPOSES
 OF  THIS  SECTION,  "INDEPENDENT  CONSIDERATION" SHALL MEAN SOMETHING OF
 VALUE, EITHER A PROMISE, AN ACT OR AN OBJECT THAT IS OFFERED IN EXCHANGE
 FOR EACH CONFIDENTIALITY PROVISION.
   § 2. This act shall take effect immediately.
 
 
 
 

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01543-01-9



              

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  849--A
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             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 -- read once and  referred
   to  the  Committee on Judiciary -- 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:
 
   Section  1.  The  general  obligations  law is amended by adding a new
 section 5-1117 to read as follows:
   § 5-1117. INDEPENDENT CONSIDERATION  REQUIRED  FOR  SETTLEMENT  AGREE-
 MENTS.  INDEPENDENT  CONSIDERATION  SHALL BE REQUIRED FOR EACH CONFIDEN-
 TIALITY PROVISION INCLUDED IN A SETTLEMENT AGREEMENT. FOR  THE  PURPOSES
 OF  THIS  SECTION,  "INDEPENDENT  CONSIDERATION" SHALL MEAN SOMETHING OF
 VALUE, EITHER A PROMISE, AN ACT OR AN OBJECT THAT IS OFFERED IN EXCHANGE
 FOR EACH CONFIDENTIALITY PROVISION.
   § 2. Section 5-336 of the general obligations law, as added by section
 1 of subpart D of part KK of chapter 57 of the laws of 2018, is  amended
 to read as follows:
   §  5-336.  Nondisclosure agreements. (A) Notwithstanding any other law
 to the contrary, no employer, its officers or employees shall  have  the
 authority to include or agree to include in any settlement, agreement or
 other resolution of any claim, the factual foundation for which involves
 sexual  harassment, any term or condition that would prevent the disclo-
 sure of the underlying facts and circumstances to the  claim  or  action
 unless the condition of confidentiality is the complainant's preference.
 Any  such  term  or  condition  must be provided to all parties, and the
 complainant shall have twenty-one days to consider such term  or  condi-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01543-03-9

 A. 849--A                           2
 
 tion.   If   after  twenty-one  days  such  term  or  condition  is  the
 complainant's preference, such preference shall be  memorialized  in  an
 agreement  signed  by  all  parties. For a period of at least seven days
 following  the  execution  of such agreement, the complainant may revoke
 the agreement, and the  agreement  shall  not  become  effective  or  be
 enforceable until such revocation period has expired.
   (B)  NOTWITHSTANDING  ANY  OTHER  LAW TO THE CONTRARY, NO PERSON SHALL
 HAVE THE AUTHORITY TO INCLUDE OR AGREE TO  INCLUDE  IN  ANY  SETTLEMENT,
 AGREEMENT  OR  OTHER RESOLUTION OF ANY CLAIM, THE FACTUAL FOUNDATION FOR
 WHICH INVOLVES SEXUAL HARASSMENT OR ANY  OTHER  FORM  OF  DISCRIMINATION
 PROHIBITED  BY  LAW, ANY TERM OR CONDITION THAT REQUIRES THE COMPLAINANT
 TO PAY THE DEFENDANT LIQUIDATED DAMAGES IN THE EVENT THAT THE  PLAINTIFF
 VIOLATES  A  NONDISCLOSURE AGREEMENT INCLUDED IN SUCH SETTLEMENT, AGREE-
 MENT, OR OTHER RESOLUTION OF A CLAIM.
   § 3. This act shall take effect immediately.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  849--B
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             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  --  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  amendments,  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:
 
   Section 1. The general obligations law is  amended  by  adding  a  new
 section 5-1117 to read as follows:
   §  5-1117.  INDEPENDENT  CONSIDERATION  REQUIRED FOR SETTLEMENT AGREE-
 MENTS. INDEPENDENT CONSIDERATION SHALL BE REQUIRED  FOR  EACH  CONFIDEN-
 TIALITY  PROVISION  INCLUDED IN A SETTLEMENT AGREEMENT. FOR THE PURPOSES
 OF THIS SECTION, "INDEPENDENT CONSIDERATION"  SHALL  MEAN  SOMETHING  OF
 VALUE, EITHER A PROMISE, AN ACT OR AN OBJECT THAT IS OFFERED IN EXCHANGE
 FOR EACH CONFIDENTIALITY PROVISION.
   § 2. Section 5-336 of the general obligations law, as added by section
 1  of subpart D of part KK of chapter 57 of the laws of 2018, is amended
 to read as follows:
   § 5-336. Nondisclosure agreements. (A) Notwithstanding any  other  law
 to  the  contrary, no employer, its officers or employees shall have the
 authority to include or agree to include in any settlement, agreement or
 other resolution of any claim, the factual foundation for which involves
 sexual harassment, any term or condition that would prevent the  disclo-
 sure  of  the  underlying facts and circumstances to the claim or action
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01543-05-9

 A. 849--B                           2
 
 unless the condition of confidentiality is the complainant's preference.
 Any such term or condition must be provided  to  all  parties,  and  the
 complainant  shall  have twenty-one days to consider such term or condi-
 tion.   If   after  twenty-one  days  such  term  or  condition  is  the
 complainant's preference, such preference shall be  memorialized  in  an
 agreement  signed  by  all  parties. For a period of at least seven days
 following the execution of such agreement, the  complainant  may  revoke
 the  agreement,  and  the  agreement  shall  not  become effective or be
 enforceable until such revocation period has expired.
   (B) NOTWITHSTANDING ANY OTHER LAW TO THE  CONTRARY,  NO  PERSON  SHALL
 HAVE  THE  AUTHORITY  TO  INCLUDE OR AGREE TO INCLUDE IN ANY SETTLEMENT,
 AGREEMENT OR OTHER RESOLUTION OF ANY CLAIM, THE FACTUAL  FOUNDATION  FOR
 WHICH  INVOLVES  SEXUAL  HARASSMENT  OR ANY OTHER FORM OF DISCRIMINATION
 PROHIBITED BY LAW, ANY TERM OR CONDITION THAT REQUIRES  THE  COMPLAINANT
 TO  PAY THE DEFENDANT LIQUIDATED DAMAGES IN THE EVENT THAT THE COMPLAIN-
 ANT VIOLATES A NONDISCLOSURE  AGREEMENT  INCLUDED  IN  SUCH  SETTLEMENT,
 AGREEMENT, OR OTHER RESOLUTION OF A CLAIM.
   § 3. This act shall take effect immediately.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  849--C
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             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:
 
   Section 1. The general obligations law is  amended  by  adding  a  new
 section 5-1117 to read as follows:
   §  5-1117.  INDEPENDENT  CONSIDERATION  REQUIRED FOR SETTLEMENT AGREE-
 MENTS. INDEPENDENT CONSIDERATION SHALL BE REQUIRED  FOR  EACH  CONFIDEN-
 TIALITY  PROVISION  INCLUDED IN A SETTLEMENT AGREEMENT. FOR THE PURPOSES
 OF THIS SECTION, "INDEPENDENT CONSIDERATION"  SHALL  MEAN  SOMETHING  OF
 VALUE, EITHER A PROMISE, AN ACT OR AN OBJECT THAT IS OFFERED IN EXCHANGE
 FOR EACH CONFIDENTIALITY PROVISION.
   § 2. Section 5-336 of the general obligations law, as amended by chap-
 ter 160 of the laws of 2019, is amended to read as follows:
   §  5-336.  Nondisclosure  agreements. 1. (a) Notwithstanding any other
 law to the contrary, no employer, its officers or employees  shall  have
 the  authority  to include or agree to include in any settlement, agree-
 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
 
 involves  discrimination,  HARASSMENT,  AND RETALIATION, in violation of
 laws prohibiting discrimination, INCLUDING DISCRIMINATORY HARASSMENT AND
 RETALIATIONS, including but not limited to, article fifteen of the exec-
 utive  law,  any  term or condition that would prevent the disclosure of
 the underlying facts and circumstances to the claim or action unless the
 condition of confidentiality is the complainant's preference.
   (b) Any such term or condition must be  provided  in  writing  to  all
 parties  in  plain  English, and, if applicable, the primary language of
 the complainant, and the complainant shall have UP TO twenty-one days to
 consider such term or condition. If [after twenty-one days such term  or
 condition] CONFIDENTIALITY is the complainant's preference, such prefer-
 ence  shall be memorialized in an agreement signed by all parties. For a
 period of at least seven days following the execution of such agreement,
 the complainant may revoke the agreement, and the  agreement  shall  not
 become  effective  or  be  enforceable  until such revocation period has
 expired.
   (c) Any such term or condition shall be void to  the  extent  that  it
 prohibits  or  otherwise restricts the complainant from: (i) initiating,
 testifying, assisting, complying with a subpoena from, or  participating
 in  any manner with an investigation conducted by the appropriate local,
 state, or federal agency; or (ii) filing or disclosing any facts  neces-
 sary  to receive unemployment insurance, Medicaid, or other public bene-
 fits to which the complainant is entitled.
   2. Notwithstanding any provision of law to the contrary, any provision
 in a contract or other agreement between an employer or an agent  of  an
 employer  and  any  employee  [or],  potential  employee, OR INDEPENDENT
 CONTRACTOR of that employer entered into on or after January first,  two
 thousand  twenty,  that  prevents  the disclosure of factual information
 related to any future claim of discrimination is void and  unenforceable
 unless such provision notifies the employee [or], potential employee, OR
 INDEPENDENT  CONTRACTOR  that  it  does  not  prohibit  [him or her] THE
 COMPLAINANT from speaking with law  enforcement,  the  equal  employment
 opportunity commission, the state division of human rights, THE ATTORNEY
 GENERAL,  a local commission on human rights, or an attorney retained by
 the employee or potential employee.
   3. NOTWITHSTANDING ANY OTHER LAW TO THE CONTRARY, NO  RELEASE  OF  ANY
 CLAIM,  THE  FACTUAL  FOUNDATION  FOR  WHICH INVOLVES UNLAWFUL DISCRIMI-
 NATION, INCLUDING DISCRIMINATORY HARASSMENT, AND/OR  RETALIATION,  SHALL
 BE ENFORCEABLE, IF AS PART OF THE AGREEMENT RESOLVING SUCH CLAIM:
   (A)  THE  COMPLAINANT  IS  REQUIRED  TO  PAY  LIQUIDATED  DAMAGES  FOR
 VIOLATION OF A NONDISCLOSURE CLAUSE OR NONDISPARAGEMENT CLAUSE;
   (B) THE COMPLAINANT IS REQUIRED TO FORFEIT ALL OR PART OF THE  CONSID-
 ERATION  FOR  THE  AGREEMENT, FOR VIOLATION OF A NONDISCLOSURE CLAUSE OR
 NONDISPARAGEMENT CLAUSE; OR
   (C) IT CONTAINS OR REQUIRES ANY STATEMENT, ASSERTION, OR DISCLAIMER BY
 THE COMPLAINANT THAT THE COMPLAINANT WAS NOT IN FACT SUBJECT TO UNLAWFUL
 DISCRIMINATION, INCLUDING DISCRIMINATORY HARASSMENT, AND/OR RETALIATION.
   § 3. This act shall take effect immediately.