S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    581
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              January 9, 2023
                                ___________
 
 Introduced  by  M. of A. ROZIC, MAMDANI, BICHOTTE HERMELYN, FAHY, GONZA-
   LEZ-ROJAS, PAULIN, BURDICK, L. ROSENTHAL,  KELLES  --  read  once  and
   referred to the Committee on Judiciary
 
 AN  ACT  to amend the general obligations law, in relation to violations
   of nondisclosure agreements in certain settlement agreements

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 5-336 of the general obligations law, as amended by
 chapter 160 of the laws of 2019, is amended to read as follows:
   §  5-336.  Nondisclosure  agreements. 1. (a) Notwithstanding any other
 law to the contrary, no employer, its officers or employees  shall  have
 the  authority  to include or agree to include in any settlement, agree-
 ment or other resolution of any claim, the factual foundation for  which
 involves  discrimination,  HARASSMENT,  OR  RETALIATION, in violation of
 laws prohibiting discrimination, INCLUDING DISCRIMINATORY HARASSMENT  OR
 RETALIATION, including but not limited to, article fifteen of the execu-
 tive law, any term or condition that would prevent the disclosure of the
 underlying  facts  and  circumstances  to the claim or action unless the
 condition of confidentiality is the complainant's preference.
   (b) Any such term or condition must be  provided  in  writing  to  all
 parties  in  plain  English, and, if applicable, the primary language of
 the complainant, and the complainant shall have UP TO twenty-one days to
 consider such term or condition. If [after twenty-one days such term  or
 condition] CONFIDENTIALITY is the complainant's preference, such prefer-
 ence  shall be memorialized in an agreement signed by all parties. For a
 period of at least seven days following the execution of such agreement,
 the complainant may revoke the agreement, and the  agreement  shall  not
 become  effective  or  be  enforceable  until such revocation period has
 expired.
   (c) Any such term or condition shall be void to  the  extent  that  it
 prohibits  or  otherwise restricts the complainant from: (i) initiating,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02527-01-3
              

 A. 581                              2
 
 testifying, assisting, complying with a subpoena from, or  participating
 in  any manner with an investigation conducted by the appropriate local,
 state, or federal agency; or (ii) filing or disclosing any facts  neces-
 sary  to receive unemployment insurance, Medicaid, or other public bene-
 fits to which the complainant is entitled.
   2. Notwithstanding any provision of law to the contrary, any provision
 in a contract or other agreement between an employer or an agent  of  an
 employer  and  any  employee  [or],  potential  employee, OR INDEPENDENT
 CONTRACTOR of that employer entered into on or after January first,  two
 thousand  twenty,  that  prevents  the disclosure of factual information
 related to any future claim of discrimination is void and  unenforceable
 unless such provision notifies the employee [or], potential employee, OR
 INDEPENDENT  CONTRACTOR  that  it  does  not  prohibit  [him or her] THE
 COMPLAINANT from speaking with law  enforcement,  the  equal  employment
 opportunity commission, the state division of human rights, THE ATTORNEY
 GENERAL,  a local commission on human rights, or an attorney retained by
 the employee or potential employee.
   3. NOTWITHSTANDING ANY OTHER LAW TO THE CONTRARY, NO  RELEASE  OF  ANY
 CLAIM,  THE  FACTUAL  FOUNDATION  FOR  WHICH INVOLVES UNLAWFUL DISCRIMI-
 NATION, INCLUDING DISCRIMINATORY HARASSMENT, OR  RETALIATION,  SHALL  BE
 ENFORCEABLE, IF AS PART OF THE AGREEMENT RESOLVING SUCH CLAIM:
   (A)  THE  COMPLAINANT  IS  REQUIRED  TO  PAY  LIQUIDATED  DAMAGES  FOR
 VIOLATION OF A NONDISCLOSURE CLAUSE OR NONDISPARAGEMENT CLAUSE;
   (B) THE COMPLAINANT IS REQUIRED TO FORFEIT ALL OR PART OF THE  CONSID-
 ERATION  FOR  THE  AGREEMENT, FOR VIOLATION OF A NONDISCLOSURE CLAUSE OR
 NONDISPARAGEMENT CLAUSE; OR
   (C) IT CONTAINS OR REQUIRES ANY AFFIRMATIVE STATEMENT,  ASSERTION,  OR
 DISCLAIMER  BY  THE  COMPLAINANT  THAT  THE  COMPLAINANT WAS NOT IN FACT
 SUBJECT TO UNLAWFUL DISCRIMINATION, INCLUDING DISCRIMINATORY HARASSMENT,
 OR RETALIATION.
   § 2. This act shall take effect immediately and shall apply to  agree-
 ments entered on or after such date.