The New York State Senate

 
                     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.