New Federal Law on NDAs

January 4, 2023 Don Pumphrey, Jr. Criminal Defense, News & Announcements, Sex Crimes, Violent Crimes Social Share

President Biden has recently signed a new federal law that will prohibit non-disclosure agreements that have previously been used to silence the victims of sexual harassment and sexual assault. Several years after the initial “#MeToo Movement,” the Speak Out Act is meant to prevent censorship for victims of sexual abuse so that they can come forward with their stories—something that was prevented by signed NDA agreements.

This article will provide information on the new law and its responses, along with information on different types of criminal charges that could arise from harassment in the workplace.

What is an NDA?

A non-disclosure agreement (NDA) is a legal contract by two or more parties that outlines the information, knowledge, or confidential material that the parties wish to share with one another while restricting access to that information to others. NDAs can be classified into three different types:

• Unilateral; The most common type of NDA, requiring only that one party not disclose any confidential information.
• Bilateral; Often referred to as mutual NDAs, both parties are prevented from disclosing confidential information.
• Multilateral; Involve three or more parties where at least one of them discloses confidential information.

By signing an NDA, the parties agree not to disclose any information which is stated within the signed contract. The confidential relationship between the signed parties creates a confidential relationship, typically to protect any trade secrets, business plans, or proprietary information.

Other reasons for NDAs include protecting employees who have been harassed or assaulted in the workplace.

The Issue with NDAs and Assault

In its nature, NDA provisions were made to protect trade secrets in the workplace but have been used more broadly. U.S. Rep. Lois Frankel said that most people are unaware of the presence of an NDA when they are signing documents and that the language is often extremely difficult to understand.

“There are these clauses that are really pretty much, for the layperson, you don’t even know what you’re signing,” said Frankel.

Frankel went on to explain that NDA clauses prohibit employees from disclosing information about their workplace and if they do, they could be penalized with getting sued or fired. One of the main issues with this is that the victim of the harassment or assault is the one who ends up getting penalized, rather than the person accused of the harassment or assault.

“Businesses are using these NDAs to cover up their dirty little secrets of sexual abuse,” Frankel said. “They force survivors to bear the trauma in silence.”

With the new federal law titled the Speak Out Act, pre-disclosure NDAs will be prohibited from being used against victims of sexual misconduct. Frankel claimed that businesses will have the incentive to protect their reputation “by preventing this abuse in the first place.”

The Speak Out Act

Congress passed the Speak Out Act on November 16^th, 2022, with an overwhelming majority. President Biden signed the bill into law on December 7^th, 2022. Under the new law, non-disclosure and non-disparagement clauses related to sexual assault and/or sexual harassment allegations “before the dispute arises” are rendered unenforceable.

Previously, the wording under the NDA bill stated that non-disclosure or non-disparagement agreements would be unenforceable if the agreement was entered or addressed “before the lawsuit is filed.”

The language change shows that Congress was mindful of the concerns over employers being disincentivized from resolving complaints of harassment or assault in a quick and effective manner. Typically, an individual would have to file harassment or assault charges with an administrative agency, which could take years before an actual lawsuit is filed.

With the newly enacted law, once a sexual assault/harassment complaint has been made, a dispute has arisen. Employers will not be able to enforce an NDA disparagement provision in a sexual harassment or assault allegation that was entered prior to the alleged harassment or assault.

Pre-disclosure and after-the-fact NDAs, while still permitted, cannot be enforced. For example, an after-the-fact NDA could be agreed upon by the company and the victim as part of a settlement agreement. In addition, the new law will apply to performance services such as repair or maintenance services that use signed consumer contracts.

Lastly, the law will prevent witnesses from being stopped from coming forward due to NDAs. If an employee in the workplace witnessed an assault or harassment, an NDA will not prevent them from coming forward as a witness. 

The Speak Out Act is working towards limiting the use and/or enforcement of confidentiality and non-disparagement clauses in a settlement agreement. The main goal is to prevent similar scenarios from the “Me Too” movement in which victims of sexual harassment and assault were limited in their ability to publicly come forward with allegations.

Responses to the New Law

During the bill’s debate, those in opposition claimed that NDAs should be left for each individual state to decide on. U.S. Rep. Jim Jordan stated the bill “while well intentioned, is misguided” and “a massive federal overreach.”

Frankel’s response claimed that the opposing side had their priorities off: “We’re here to protect women from being raped, not states from being raped.”

U.S. Rep. Dan Bishop asserted his fear of the new bill creating a green light for false accusations. Bishop claimed the new law would “empower non-survivors…That is to say anyone who wishes to bring a non-meritorious claim of sexual harassment forward in order to destroy someone’s life will also be empowered by this.”

Despite the few opposing views, the Speak Out Act received a large amount of support. The bill passed unanimously in the Senate and passed with a 315-109 vote in the House.

“People who experience sexual harassment or assault should be able to demand accountability in the courtroom or the public square, and a nondisclosure agreement shouldn’t bar survivors from sharing their stories if they so choose,” said bill co-sponsor Chuck Grassley, U.S. Sen of Iowa.

Frankel gave the following statement after the bill was passed:

“It’s an amazing feeling when you know that you have passed a law that is going to help people. Really, it’s going to affect in a positive way millions and millions and millions of people. It’s going to make workplaces much safer and much more productive.”

Charges for Assault in Florida

In legal terms, a person accused of assaulting or harassing someone in the workplace could face various criminal charges.

• Stalking – Florida Statute section 784.048 explains that a person can be charged with first-degree misdemeanor stalking for willfully, maliciously, and repeatedly following, harassing, or cyberstalking another person. If the accused person makes a credible threat to the victim, it can be upgraded to aggravated stalking, which is a third-degree felony in Florida.
• Written Threats – Under Florida Statute section 836.10, it is a second-degree felony for any person to send, post, transmit, or procure the sending, posting, or transmission of a writing or other record—including an electronic record—in any manner in which it may be viewed by another person, when in such writing or record the person makes a threat to:
  • Cause bodily harm or kill another person; or
  • Conduct a mass shooting or an act of terrorism.
• Lewd and Lascivious Acts – Florida Statute section 800.02 states that a person can be charged with a second-degree misdemeanor for committing any unnatural and lascivious act with another person. Florida Statute section 800.04 covers the additional lewd and lascivious charges against a person under 16 years of age. This can range from molestation, conduct, or exhibition.
• Exposure of Sexual Organs – Florida Statue section 800.03 explains that a person can be charged with the exposure of sexual organs for:
  • Exposing or exhibiting his or her sexual organs in public or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner; or
  • Being naked in public in a vulgar or indecent manner.
  • A person accused of a first-offense exposure of sexual organs can be charged with a first-degree misdemeanor. A second or subsequent violation can result in a third-degree felony.
• Sexual Battery – Sexual battery or “rape” is defined under Florida Statute section 794.011 as the oral, anal, or female genital penetration by, or in union with, the sexual organ of another or the anal or female genital penetration of another by any other object. Any person 18 or older who commits sexual battery upon someone 18 or older can be charged with a first-degree felony in Florida. The charges for sexual battery can vary depending on the age of both the victim and the alleged offender.

Finding a Defense Attorney in Tallahassee, Florida

Getting accused of any type of harassment or assault in the workplace is not something to be taken lightly. A person can face criminal charges that could lead to life-altering consequences. The changed law on NDAs shows that harassment or assault will likely be prosecuted harshly, which means a person who is wrongfully accused is highly advised to speak with a legal professional.

Don Pumphrey and his team at Pumphrey Law Firm have years of experience representing clients across the state of Florida. Our attorneys will work tirelessly to build a strong defense for your case. Contact us today for a free consultation at (850) 681-7777 or leave an online message on our website.

Written by Karissa Key

  Social Share