On December 7, 2022, President Biden signed into law the Speak Out Act, which prevents courts from enforcing certain non-disclosure and non-disparagement clauses related to claims of sexual assault or harassment. The new law was effective immediately.

Specifically, the Act bars the enforcement of non-disclosure and non-disparagement clauses with respect to a sexual assault or sexual harassment disputes where the alleged conduct violates federal, tribal, or state law. 

Notably, the law only applies to agreements entered into prior to a dispute arising i.e., such clauses that appear in onboarding documents, such as employment contracts and confidentiality agreements, will be subject to the Act, whereas provisions in post-dispute documents, such as severance or settlement agreements, will remain enforceable. 

The law broadly defines “sexual harassment dispute” to encompass disputes relating to any conduct that constitutes sexual harassment under any federal, tribal, or state law. Likewise, “sexual assault dispute” includes any dispute involving a nonconsensual sexual act or sexual act as defined by federal, state or tribunal law. 

Employers should immediately review their employment agreements, offer letters, and similar onboarding documents and consider adding carve-out and/or severability language to maintain their enforceability.