NY State Senate Bill S738

Current Bill Status - Passed Senate

Introduced
In Committee
On Floor Calendar
- Passed Senate
- Passed Assembly
Delivered to Governor
Signed/Vetoed by Governor

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Actions

view actions (8)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 25, 2021	referred to judiciary delivered to assembly passed senate
Mar 25, 2021	advanced to third reading
Mar 24, 2021	2nd report cal.
Mar 23, 2021	1st report cal.620 1st report cal.620
Jan 06, 2021	referred to judiciary

Votes

view votes

May 25, 2021 - floor Vote

S738

floor

Aye

Nay

Absent

Excused

Abstained

Mar 23, 2021 - Judiciary committee Vote

S738

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

Co-Sponsors

view additional co-sponsors

S738 (ACTIVE) - Details

See Assembly Version of this Bill:: A5580
Current Committee:: Assembly 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
2019-2020: S1018, S5469, S5649, A849

S738 (ACTIVE) - 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.

S738 (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S738

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:

2017-2018: A11353 Died in judiciary

2019-2020: S5469B/A849 Died in judiciary; Died in judiciary

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

S738 (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    738
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by Sens. BIAGGI, 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
 
 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,
 the  complainant  may  revoke the agreement, and the agreement shall not
 become effective or be enforceable  until  such  revocation  period  has
 expired.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD02932-01-1

 S. 738                              2
 
   (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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The New York State Senate

senate Bill S738

Sponsored By

Current Bill Status - Passed Senate

Your Voice

Actions

Votes

May 25, 2021 - floor Vote

Floor Vote: May 25, 2021

Mar 23, 2021 - Judiciary committee Vote

Judiciary Committee Vote: Mar 23, 2021

Co-Sponsors

S738 (ACTIVE) - Details

S738 (ACTIVE) - Summary

S738 (ACTIVE) - Sponsor Memo

S738 (ACTIVE) - Bill Text download pdf

Comments

senate Bill S738

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Sponsored By

Current Bill Status - Passed Senate

Your Voice

Actions

Votes

May 25, 2021 - floor Vote

Floor Vote: May 25, 2021

Mar 23, 2021 - Judiciary committee Vote

Judiciary Committee Vote: Mar 23, 2021

Co-Sponsors

S738 (ACTIVE) - Details

S738 (ACTIVE) - Summary

S738 (ACTIVE) - Sponsor Memo

S738 (ACTIVE) - Bill Text download pdf

Comments