S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4516
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 9, 2023
                                ___________
 
 Introduced by Sen. FERNANDEZ -- 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 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,
 testifying, assisting, complying with a subpoena from, or  participating
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02527-01-3
              

 S. 4516                             2
 
 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.