NDA Ban Can Be Nullified By Complainant

The state of New York has enacted several new laws that address sexual harassment. The prohibition against non-disclosure agreements has been well-publicized, but in a client alert, the Arent Fox firm points out an open question. It is unclear whether a proposal to include an NDA as part of a settlement is a per-se violation of the law, since the prohibition does not extend to agreements that are the “complainant’s preference.” Complainants have three weeks to consider the provision, and one week  after execution to revoke their acceptance. Employers are also prohibited from including mandatory arbitration clauses in any employment contract, except where permitted by federal law. There are mandatory anti-sexual harassment training requirements for employers with 15 employees including interns, and the law firm warns that this training cannot be pro-forma. It is crucial that it have an impact on reducing and eliminating exposure to claims of workplace sexual harassment.