The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10021
 
                           I N  A S S E M B L Y
 
                              April 29, 2022
                                ___________
 
 Introduced  by  M. of A. GONZALEZ-ROJAS -- read once and referred to the
   Committee on Judiciary
 
 AN ACT to amend the general obligations law, in relation  to  nondisclo-
   sure and non-disparagement 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 AND NON-DISPARAGEMENT agreements.   1. AS  USED
 IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A)  "EMPLOYER" SHALL MEAN ALL PUBLIC AND PRIVATE EMPLOYERS WITHIN THE
 STATE.
   (B) "EMPLOYEE" SHALL MEAN ALL PUBLIC AND PRIVATE EMPLOYEES,  INCLUDING
 APPLICANTS  FOR  EMPLOYMENT,  FORMER  EMPLOYEES, PAID OR UNPAID INTERNS,
 VOLUNTEERS AND NATURAL PERSONS EMPLOYED AS  INDEPENDENT  CONTRACTORS  TO
 CARRY  OUT  WORK IN FURTHERANCE OF AN EMPLOYER'S BUSINESS ENTERPRISE WHO
 ARE NOT THEMSELVES EMPLOYERS.
   2. (a) Notwithstanding any other law to the contrary, no employer, its
 officers, AGENTS or employees shall have the  authority  to  include  or
 agree  to  include  in any WAIVER, settlement, agreement or other resol-
 ution of any claim, the factual foundation for which involves [discrimi-
 nation, in violation of laws prohibiting discrimination,  including  but
 not  limited  to,] AN ALLEGED VIOLATION OF article fifteen of the execu-
 tive law OR THE LABOR 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]  EMPLOYEE'S WORKPLACE EXPERIENCE WITH THE EMPLOYER. ANY SUCH
 TERM OR CONDITION SHALL BE DEEMED AGAINST PUBLIC POLICY AND  UNENFORCEA-
 BLE AGAINST AN EMPLOYEE.
   (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 twenty-one days to
 consider such term or condition. If after twenty-one days such  term  or
 condition  is  the  complainant's  preference,  such preference shall be

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

                                                            LBD15374-02-2
 A. 10021                            2

 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.] THE PROVISIONS OF THIS
 SUBDIVISION DO NOT PROHIBIT THE INCLUSION OR ENFORCEMENT OF A  PROVISION
 IN  ANY  AGREEMENT  THAT PRECLUDES THE DISCLOSURE OF ANY MONETARY AMOUNT
 PAID IN SETTLEMENT OF A CLAIM.
   (C) THE PROVISIONS OF THIS SUBDIVISION DO NOT PROHIBIT  THE  INCLUSION
 OR ENFORCEMENT OF A PROVISION IN ANY AGREEMENT THAT RESTRICTS AN EMPLOY-
 ER  FROM REVEALING THE IDENTITY OF THE EMPLOYEE AND THE EXISTENCE OF AND
 CIRCUMSTANCES SURROUNDING THE EMPLOYEE'S COMPLAINT ABOUT WORKPLACE PRAC-
 TICES, EXCEPT AS REQUIRED BY LAW.
   (D) AGREEMENTS THAT  SETTLE  LEGAL  CLAIMS  BETWEEN  AN  EMPLOYER  AND
 EMPLOYEE  SHALL  STATE IN BOLD LANGUAGE THAT THE EMPLOYEE IS ENTITLED TO
 RECEIVE A COPY OF THE AGREEMENT IN THEIR PRIMARY LANGUAGE.
   [2.] 3. Notwithstanding any provision of  law  to  the  contrary,  any
 provision in a contract or other agreement OR APPLICATION FOR EMPLOYMENT
 between  an  employer  or  an  agent  of an employer and any employee or
 potential employee of that employer entered into AS A CONDITION  OF  THE
 EMPLOYEE'S  EMPLOYMENT, on or after January first, two thousand [twenty]
 TWENTY-THREE,  that  prevents  the  disclosure  of  factual  information
 related  to  any  future [claim of discrimination] ALLEGED VIOLATIONS OF
 ARTICLE FIFTEEN OF THE EXECUTIVE LAW OR THE LABOR LAW, OR THAT  PREVENTS
 THE DISCLOSURE OF THE EMPLOYEE'S WORKPLACE EXPERIENCE WITH THE EMPLOYER,
 is  void  and unenforceable [unless such provision notifies the employee
 or potential employee that it does not prohibit him or her from speaking
 with law enforcement, the equal employment opportunity  commission,  the
 state  division  of human rights, a local commission on human rights, or
 an attorney  retained  by  the  employee  or  potential  employee].  THE
 PROVISIONS  OF  THIS  SUBDIVISION  SHALL  NOT  PROHIBIT  AN EMPLOYER AND
 EMPLOYEE FROM AGREEING TO PROTECT TRADE  SECRETS,  PROPRIETARY  INFORMA-
 TION,   OR  CONFIDENTIAL  INFORMATION  THAT  DOES  NOT  INVOLVE  ALLEGED
 VIOLATIONS OF ARTICLE  FIFTEEN  OF  THE   EXECUTIVE   LAW OR  THE  LABOR
 LAW. ANY SUCH CONFIDENTIALITY OR NONDISCLOSURE AGREEMENT SHALL INCLUDE A
 STATEMENT THAT THE EMPLOYEE HAS THE RIGHT TO SPEAK WITH LAW ENFORCEMENT,
 THE  EQUAL  EMPLOYMENT  OPPORTUNITY  COMMISSION,  THE  DIVISION OF HUMAN
 RIGHTS, ANY LOCAL COMMISSION ON HUMAN RIGHTS, THE ATTORNEY GENERAL,  ANY
 REGULATORY AGENCY THAT INVESTIGATES WORKPLACE CONDITIONS, OR AN ATTORNEY
 RETAINED BY THE EMPLOYEE OR POTENTIAL EMPLOYEE.
   §  2.  This  act  shall take effect on the sixtieth day after it shall
 have become a law and shall apply to all  applicable  contracts  entered
 into, renewed, modified or amended on or after such effective date.