If you think you can keep sexual harassment and sexual assault claims quiet through the use of arbitration and non-disclosure agreements signed at the outset of employment or before a claim is made, you better think again.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act and The Speak Out Act (both signed into law in 2022) render unenforceable past and future pre-claim agreements requiring arbitration and non-disclosure of sexual harassment and sexual assault claims in the workplace. For instance, if your employees sign acknowledgements for a handbook that contains an arbitration clause, then that clause will be unenforceable if an employee later brings a claim for sexual harassment or sexual assault. If your employees sign confidentiality agreements that prevent them from publicly discussing any claims of sexual harassment or sexual assault, those agreements will be unenforceable as to any future claims.
It is always a good time for businesses to look at their employee handbooks and agreements, and in light of this new federal legislation, potentially modify expectations when it comes to quietly handling these types of claims.