NY State Senate Bill 2019-S5469B

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jul 15, 2020	print number 5469b
Jul 15, 2020	amend (t) and recommit to judiciary
Jan 08, 2020	referred to judiciary
May 28, 2019	print number 5469a
May 28, 2019	amend and recommit to judiciary
May 01, 2019	referred to judiciary

Bill Amendments

Original

B (Active)

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2019-S5469 - Details

See Assembly Version of this Bill:: A849
Current Committee:: Senate Judiciary
Law Section:: General Obligations Law
Laws Affected:: Amd §5-336, Gen Ob L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S4407
2017-2018: S550, A11353
2021-2022: S738, A5580
2023-2024: S4516, A581

2019-S5469 - Summary

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.

2019-S5469 - Sponsor Memo

                                
 
BILL NUMBER: S5469

SPONSOR: BIAGGI
 
TITLE OF BILL:  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

 
PURPOSE OR GENERAL IDEA OF BILL:

To require independent consideration for settlement agreements and
prohibit liquidated damages provisions in confidential settlements of
harassment and discrimination claims.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 adds a new section, 5-1117, to the general obligations law to
require independent consideration for each confidentiality provision
included in a settlement agreement.

Section 2 amends section 5-336 of the general obligations law to prohib-

it any settlement or other resolution of a claim involving sexual
harassment or any other form of unlawful discrimination from including
any term or condition that requires the complainant to pay the defendant
liquidated damages in the event that the plaintiff violates a non-dis-
closure agreement.

Section 3 provides the effective date.

 
JUSTIFICATION:

Targets of sexual harassment and discrimination are often required to
sign nondisclosure agreements in order to receive compensation for the
harm they have experienced. While both parties in a settlement may
desire confidentiality, the plaintiff often has no meaningful choice in
deciding to sign a nondisclosure agreement. Requiring separate consider-
ation for confidentiality provisions would strengthen the complainant's
bargaining power and protect their recovery for harm if confidentiality
is violated. Additionally, the bill further enhances protections for
complainants by prohibiting settlements of harassment and discrimination
claims from including any terms or conditions requiring a plaintiff to
pay liquidated damages for violating a nondisclosure agreement. This
legislation will help create a more just and balanced settlement process
and prevent abusers from forcing their victims into silence.

 
PRIOR LEGISLATIVE HISTORY:

2017-2018: A11353

 
EFFECTIVE DATE:

This act shall take effect immediately.

2019-S5469 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5469
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                May 1, 2019
                                ___________
 
 Introduced  by  Sen.  BIAGGI -- read twice and ordered printed, and when
   printed to be committed 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
   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-
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD01543-04-9

 S. 5469                             2
 
 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.

co-Sponsors

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2019-S5469A - Details

See Assembly Version of this Bill:: A849
Current Committee:: Senate Judiciary
Law Section:: General Obligations Law
Laws Affected:: Amd §5-336, Gen Ob L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S4407
2017-2018: S550, A11353
2021-2022: S738, A5580
2023-2024: S4516, A581

2019-S5469A - Summary

2019-S5469A - Sponsor Memo

                                
 
BILL NUMBER: S5469A

SPONSOR: BIAGGI
 
TITLE OF BILL:  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

 
PURPOSE OR GENERAL IDEA OF BILL:

To require independent consideration for settlement agreements and
prohibit liquidated damages provisions in confidential settlements of
harassment and discrimination claims.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 adds a new section, 5-1117, to the general obligations law to
require independent consideration for each confidentiality provision
included in a settlement agreement.

Section 2 amends section 5-336 of the general obligations law to prohib-

it any settlement or other resolution of a claim involving sexual
harassment or any other form of unlawful discrimination from including
any term or condition that requires the complainant to pay the defendant
liquidated damages in the event that the plaintiff violates a non-dis-
closure agreement.

Section 3 provides the effective date.

 
JUSTIFICATION:

Targets of sexual harassment and discrimination are often required to
sign nondisclosure agreements in order to receive compensation for the
harm they have experienced. While both parties in a settlement may
desire confidentiality, the plaintiff often has no meaningful choice in
deciding to sign a nondisclosure agreement. Requiring separate consider-
ation for confidentiality provisions would strengthen the complainant's
bargaining power and protect their recovery for harm if confidentiality
is violated. Additionally, the bill further enhances protections for
complainants by prohibiting settlements of harassment and discrimination
claims from including any terms or conditions requiring a plaintiff to
pay liquidated damages for violating a nondisclosure agreement. This
legislation will help create a more just and balanced settlement process
and prevent abusers from forcing their victims into silence.

 
PRIOR LEGISLATIVE HISTORY:

2017-2018: A11353

 
EFFECTIVE DATE:
This act shall take effect immediately.

2019-S5469A - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5469--A
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                May 1, 2019
                                ___________
 
 Introduced  by Sens. BIAGGI, CARLUCCI, HOYLMAN, KRUEGER, LIU, SALAZAR --
   read twice and ordered printed, and when printed to  be  committed  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-
 tion.   If   after  twenty-one  days  such  term  or  condition  is  the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD01543-06-9

 S. 5469--A                          2
 
 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.

co-Sponsors

View additional co-sponsors

2019-S5469B (ACTIVE) - Details

See Assembly Version of this Bill:: A849
Current Committee:: Senate Judiciary
Law Section:: General Obligations Law
Laws Affected:: Amd §5-336, Gen Ob L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S4407
2017-2018: S550, A11353
2021-2022: S738, A5580
2023-2024: S4516, A581

2019-S5469B (ACTIVE) - Summary

2019-S5469B (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5469B

SPONSOR: BIAGGI
 
TITLE OF BILL:

An act to amend the general obligations law, in relation to violations
of nondisclosure agreements in certain settlement agreements

 
PURPOSE OR GENERAL IDEA OF BILL:

To prohibit liquidated damages provisions in confidential settlements of
harassment and discrimination claims.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends section 5-336 of the general obligations law to prohib-
it any settlement or other resolution of a claim involving sexual
harassment or any other form of unlawful discrimination from including
any term or condition that requires the complainant, to pay the defend-
ant liquidated damages in the event that the plaintiff violates a non-
disclosure agreement.

Section 2 provides the effective date.

 
JUSTIFICATION:

Targets of sexual harassment and discrimination are often required to
sign non-disclosure agreements (NDA) in order to receive compensation
for the harm they have experienced. These agreements frequently include
provisions requiring a plaintiff to pay liquidated damages if they
violate the agreement. Thus, survivors who later change their mind or
were originally coerced into signing an NDA face an enormous financial
penalty for speaking about what happened to them.  This legislation will
protect survivors from facing financial sanction for sharing their expe-
riences of harassment and discrimination. The bill bars settlements of
harassment and discrimination claims from including any terms or condi-
tions requiring a plaintiff to pay liquidated damages for violating an
NDA. Additionally, agreements may not require the complainant to forfeit
part or all of the consideration for violating the non-disclosure
provisions, nor may they be required to sign an affirmative statement,
assertion, or disclaimer stating that they were not subject to discrimi-
nation or retaliation.

 
PRIOR LEGISLATIVE HISTORY:

2019: A849, referred to judiciary; 55469, referred to judiciary

2017-2018: A11353, referred to judiciary

 
EFFECTIVE DATE:
This act shall take effect immediately and will apply to agreements
entered on or after that date.

2019-S5469B (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5469--B
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                May 1, 2019
                                ___________
 
 Introduced  by  Sens.  BIAGGI,  CARLUCCI,  GAUGHRAN, GOUNARDES, HOYLMAN,
   KRUEGER, LIU, MAYER,  RIVERA,  SALAZAR,  SKOUFIS  --  read  twice  and
   ordered  printed, and when printed to be committed to the Committee on
   Judiciary -- committee discharged, bill amended, ordered reprinted  as
   amended  and  recommitted  to  said  committee  --  recommitted to the
   Committee on Judiciary in accordance with Senate Rule  6,  sec.  8  --
   committee  discharged,  bill amended, ordered reprinted as amended and
   recommitted to said committee
 
 AN ACT to amend the general obligations law, in relation  to  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. Section 5-336 of the general obligations law, as amended by
 chapter 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
 involves discrimination, HARASSMENT, OR  RETALIATION,  in  violation  of
 laws  prohibiting discrimination, INCLUDING DISCRIMINATORY HARASSMENT OR
 RETALIATION, including but not limited to, article fifteen of the execu-
 tive 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,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD01543-12-0

 S. 5469--B                          2
 
 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, 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 AFFIRMATIVE STATEMENT, ASSERTION, OR
 DISCLAIMER BY THE COMPLAINANT THAT  THE  COMPLAINANT  WAS  NOT  IN  FACT
 SUBJECT TO UNLAWFUL DISCRIMINATION, INCLUDING DISCRIMINATORY HARASSMENT,
 OR RETALIATION.
   §  2. This act shall take effect immediately and shall apply to agree-
 ments entered on or after such date.

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Senate Bill S5469B

Sponsored By

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Actions

Bill Amendments

co-Sponsors

2019-S5469 - Details

2019-S5469 - Summary

2019-S5469 - Sponsor Memo

2019-S5469 - Bill Text download pdf

co-Sponsors

2019-S5469A - Details

2019-S5469A - Summary

2019-S5469A - Sponsor Memo

2019-S5469A - Bill Text download pdf

co-Sponsors

2019-S5469B (ACTIVE) - Details

2019-S5469B (ACTIVE) - Summary

2019-S5469B (ACTIVE) - Sponsor Memo

2019-S5469B (ACTIVE) - Bill Text download pdf

Comments

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Sponsored By

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Actions

Bill Amendments

co-Sponsors

2019-S5469 - Details

2019-S5469 - Summary

2019-S5469 - Sponsor Memo

2019-S5469 - Bill Text download pdf

co-Sponsors

2019-S5469A - Details

2019-S5469A - Summary

2019-S5469A - Sponsor Memo

2019-S5469A - Bill Text download pdf

co-Sponsors

2019-S5469B (ACTIVE) - Details

2019-S5469B (ACTIVE) - Summary

2019-S5469B (ACTIVE) - Sponsor Memo

2019-S5469B (ACTIVE) - Bill Text download pdf

Comments