Changes to Non-Disclosure Provisions in NDAs or Other Agreements08/24/2023
NDAs or other Agreements entered into or renewed on or after August 7, 2023 that limit the employee’s ability to disclose or discuss alleged discriminatory or unfair employment practices are void unless the non-disclosure provisions meet the following requirements:
- Nondisclosure equally applies to all parties.
- The provisions expressly state that the employee is not restricted from disclosure of the underlying facts of an alleged discriminatory practice (including disclosure of the existence and terms of a settlement) to government agencies, the employee’s immediate family members, religious advisor, medical or mental health provider or support group, legal counsel, financial advisor or tax preparer or in response to legal process and other purposes required by law, without first notifying the employer.
- The provision expressly states the above disclosure does not constitute disparagement.
- The provision includes a condition that a non-disparagement provision is unenforceable against the employee if the employer disparages the employee to a third party.
- A liquidated damages provision is only enforceable if it is reasonable and proportionate, varied based on the nature or severity of the breach and not punitive.
- Includes an addendum attesting to compliance with this subsection of the POWR Act addressing nondisclosure provisions is attached and signed by all parties.