S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4233
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 6, 2023
                                ___________
 
 Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when
   printed to be committed to the Committee on Judiciary
 
 AN  ACT  to amend the general obligations law, in relation to nondisclo-
   sure and non-disparagement 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 AND NON-DISPARAGEMENT agreements.  1. AS USED
 IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A) "EMPLOYER" SHALL MEAN ALL PUBLIC AND PRIVATE EMPLOYERS WITHIN  THE
 STATE.
   (B)  "EMPLOYEE" SHALL MEAN ALL PUBLIC AND PRIVATE EMPLOYEES, INCLUDING
 APPLICANTS FOR EMPLOYMENT, FORMER EMPLOYEES,  PAID  OR  UNPAID  INTERNS,
 VOLUNTEERS  AND  NATURAL  PERSONS EMPLOYED AS INDEPENDENT CONTRACTORS TO
 CARRY OUT WORK IN FURTHERANCE OF AN EMPLOYER'S BUSINESS  ENTERPRISE  WHO
 ARE NOT THEMSELVES EMPLOYERS.
   2. (a) Notwithstanding any other law to the contrary, no employer, its
 officers,  AGENTS  or  employees  shall have the authority to include or
 agree to include in any WAIVER, settlement, agreement  or  other  resol-
 ution of any claim, the factual foundation for which involves [discrimi-
 nation,  in  violation of laws prohibiting discrimination, including but
 not limited to,] AN ALLEGED VIOLATION OF THE LABOR  LAW  OR  OF  article
 fifteen  of  the executive 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] EMPLOYEE'S WORKPLACE EXPERIENCE WITH THE EMPLOYER. ANY  SUCH
 TERM  OR CONDITION SHALL BE DEEMED AGAINST PUBLIC POLICY AND UNENFORCEA-
 BLE AGAINST AN EMPLOYEE.
   (b) [Any such term or condition must be provided  in  writing  to  all
 parties  in  plain  English, and, if applicable, the primary language of

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04830-02-3
              

 S. 4233                             2

 the complainant, and the  complainant  shall  have  twenty-one  days  to
 consider  such  term or condition. If after twenty-one days such term or
 condition is the complainant's  preference,  such  preference  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,
 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.] THE PROVISIONS OF THIS
 SUBDIVISION DO NOT PROHIBIT THE INCLUSION OR ENFORCEMENT OF A  PROVISION
 IN  ANY  AGREEMENT  THAT PRECLUDES THE DISCLOSURE OF ANY MONETARY AMOUNT
 PAID IN SETTLEMENT OF A CLAIM.
   (C) THE PROVISIONS OF THIS SUBDIVISION DO NOT PROHIBIT  THE  INCLUSION
 OR ENFORCEMENT OF A PROVISION IN ANY AGREEMENT THAT RESTRICTS AN EMPLOY-
 ER  FROM REVEALING THE IDENTITY OF THE EMPLOYEE AND THE EXISTENCE OF AND
 CIRCUMSTANCES SURROUNDING THE EMPLOYEE'S COMPLAINT ABOUT WORKPLACE PRAC-
 TICES, EXCEPT AS REQUIRED BY LAW.
   (D) AGREEMENTS THAT  SETTLE  LEGAL  CLAIMS  BETWEEN  AN  EMPLOYER  AND
 EMPLOYEE  SHALL  STATE IN BOLD LANGUAGE THAT THE EMPLOYEE IS ENTITLED TO
 RECEIVE A COPY OF THE AGREEMENT IN THEIR PRIMARY LANGUAGE.
   [2.] 3. Notwithstanding any provision of  law  to  the  contrary,  any
 provision in a contract or other agreement OR APPLICATION FOR EMPLOYMENT
 between  an  employer  or  an  agent  of an employer and any employee or
 potential employee of that employer entered into AS A CONDITION  OF  THE
 EMPLOYEE'S  EMPLOYMENT, on or after January first, two thousand [twenty]
 TWENTY-FOUR, that prevents the disclosure of factual information related
 to any future [claim of discrimination] ALLEGED VIOLATIONS OF THE  LABOR
 LAW  OR  OF  ARTICLE  FIFTEEN OF THE EXECUTIVE LAW, OR THAT PREVENTS THE
 DISCLOSURE OF THE EMPLOYEE'S WORKPLACE EXPERIENCE WITH THE EMPLOYER,  is
 void  and  unenforceable [unless such provision notifies the employee or
 potential employee that it does not prohibit him or  her  from  speaking
 with  law  enforcement, the equal employment opportunity commission, the
 state division of human rights, a local commission on human  rights,  or
 an  attorney  retained  by  the  employee  or  potential  employee]. THE
 PROVISIONS OF THIS  SUBDIVISION  SHALL  NOT  PROHIBIT  AN  EMPLOYER  AND
 EMPLOYEE  FROM  AGREEING  TO PROTECT TRADE SECRETS, PROPRIETARY INFORMA-
 TION,  OR  CONFIDENTIAL  INFORMATION  THAT  DOES  NOT  INVOLVE   ALLEGED
 VIOLATIONS  OF  THE LABOR LAW OR OF ARTICLE  FIFTEEN  OF  THE  EXECUTIVE
 LAW.  ANY SUCH CONFIDENTIALITY OR NONDISCLOSURE AGREEMENT SHALL  INCLUDE
 A  STATEMENT  THAT THE EMPLOYEE HAS THE RIGHT TO SPEAK WITH LAW ENFORCE-
 MENT, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, THE DIVISION OF HUMAN
 RIGHTS, ANY LOCAL COMMISSION ON HUMAN RIGHTS, THE ATTORNEY GENERAL,  ANY
 REGULATORY AGENCY THAT INVESTIGATES WORKPLACE CONDITIONS, OR AN ATTORNEY
 RETAINED BY THE EMPLOYEE OR POTENTIAL EMPLOYEE.
   §  2.  This  act  shall take effect on the sixtieth day after it shall
 have become a law and shall apply to all  applicable  contracts  entered
 into, renewed, modified or amended on or after such effective date.