STATE OF NEW YORK ________________________________________________________________________ 4233 2023-2024 Regular Sessions IN SENATE February 6, 2023 ___________ Introduced by Sen. GOUNARDES -- 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 nondisclo- sure and non-disparagement agreements The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 5-336 of the general obligations law, as amended by 2 chapter 160 of the laws of 2019, is amended to read as follows: 3 § 5-336. Nondisclosure and non-disparagement agreements. 1. As used 4 in this section, the following terms shall have the following meanings: 5 (a) "Employer" shall mean all public and private employers within the 6 state. 7 (b) "Employee" shall mean all public and private employees, including 8 applicants for employment, former employees, paid or unpaid interns, 9 volunteers and natural persons employed as independent contractors to 10 carry out work in furtherance of an employer's business enterprise who 11 are not themselves employers. 12 2. (a) Notwithstanding any other law to the contrary, no employer, its 13 officers, agents or employees shall have the authority to include or 14 agree to include in any waiver, settlement, agreement or other resol- 15 ution of any claim, the factual foundation for which involves [discrimi- 16 nation, in violation of laws prohibiting discrimination, including but 17 not limited to,] an alleged violation of the labor law or of article 18 fifteen of the executive law, any term or condition that would prevent 19 the disclosure of the [underlying facts and circumstances to the claim 20 or action unless the condition of confidentiality is the complainant's 21 preference] employee's workplace experience with the employer. Any such 22 term or condition shall be deemed against public policy and unenforcea- 23 ble against an employee. 24 (b) [Any such term or condition must be provided in writing to all 25 parties in plain English, and, if applicable, the primary language of EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04830-02-3
S. 4233 2 1 the complainant, and the complainant shall have twenty-one days to 2 consider such term or condition. If after twenty-one days such term or 3 condition is the complainant's preference, such preference shall be 4 memorialized in an agreement signed by all parties. For a period of at 5 least seven days following the execution of such agreement, the 6 complainant may revoke the agreement, and the agreement shall not become 7 effective or be enforceable until such revocation period has expired. 8 (c) Any such term or condition shall be void to the extent that it 9 prohibits or otherwise restricts the complainant from: (i) initiating, 10 testifying, assisting, complying with a subpoena from, or participating 11 in any manner with an investigation conducted by the appropriate local, 12 state, or federal agency; or (ii) filing or disclosing any facts neces- 13 sary to receive unemployment insurance, Medicaid, or other public bene- 14 fits to which the complainant is entitled.] The provisions of this 15 subdivision do not prohibit the inclusion or enforcement of a provision 16 in any agreement that precludes the disclosure of any monetary amount 17 paid in settlement of a claim. 18 (c) The provisions of this subdivision do not prohibit the inclusion 19 or enforcement of a provision in any agreement that restricts an employ- 20 er from revealing the identity of the employee and the existence of and 21 circumstances surrounding the employee's complaint about workplace prac- 22 tices, except as required by law. 23 (d) Agreements that settle legal claims between an employer and 24 employee shall state in bold language that the employee is entitled to 25 receive a copy of the agreement in their primary language. 26 [2.] 3. Notwithstanding any provision of law to the contrary, any 27 provision in a contract or other agreement or application for employment 28 between an employer or an agent of an employer and any employee or 29 potential employee of that employer entered into as a condition of the 30 employee's employment, on or after January first, two thousand [twenty] 31 twenty-four, that prevents the disclosure of factual information related 32 to any future [claim of discrimination] alleged violations of the labor 33 law or of article fifteen of the executive law, or that prevents the 34 disclosure of the employee's workplace experience with the employer, is 35 void and unenforceable [unless such provision notifies the employee or 36 potential employee that it does not prohibit him or her from speaking 37 with law enforcement, the equal employment opportunity commission, the 38 state division of human rights, a local commission on human rights, or 39 an attorney retained by the employee or potential employee]. The 40 provisions of this subdivision shall not prohibit an employer and 41 employee from agreeing to protect trade secrets, proprietary informa- 42 tion, or confidential information that does not involve alleged 43 violations of the labor law or of article fifteen of the executive 44 law. Any such confidentiality or nondisclosure agreement shall include 45 a statement that the employee has the right to speak with law enforce- 46 ment, the equal employment opportunity commission, the division of human 47 rights, any local commission on human rights, the attorney general, any 48 regulatory agency that investigates workplace conditions, or an attorney 49 retained by the employee or potential employee. 50 § 2. This act shall take effect on the sixtieth day after it shall 51 have become a law and shall apply to all applicable contracts entered 52 into, renewed, modified or amended on or after such effective date.