S T A T E O F N E W Y O R K
________________________________________________________________________
2555--A
2023-2024 Regular Sessions
I N A S S E M B L Y
January 26, 2023
___________
Introduced by M. of A. GONZALEZ-ROJAS, GALLAGHER, DAVILA, CRUZ, GLICK,
SIMON, COOK -- 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 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 THE LABOR LAW OR OF article
fifteen of the executive 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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04830-03-3
A. 2555--A 2
(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
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-FOUR, that prevents the disclosure of factual information related
to any future [claim of discrimination] ALLEGED VIOLATIONS OF THE LABOR
LAW OR OF ARTICLE FIFTEEN OF THE EXECUTIVE 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 THE LABOR LAW OR OF ARTICLE FIFTEEN OF THE EXECUTIVE
LAW. ANY SUCH CONFIDENTIALITY OR NONDISCLOSURE AGREEMENT SHALL INCLUDE
A STATEMENT THAT THE EMPLOYEE HAS THE RIGHT TO SPEAK WITH LAW ENFORCE-
MENT, 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.