President Joe Biden signed legislation curbing the use of restrictive nondisclosure agreements that prevented women from speaking publicly about misconduct in the workplace.
The law was necessitated by confidentiality clauses embedded in contracts imposed by Governor Phil Murphy and Fox News on employees who later became victims of sexual harassment, assault and other crimes.
Former Fox News anchor Gretchen Carlson, who accused network CEO Roger Ailes of harming her career when she rejected his unwanted sexual advances, championed the change after the NDA she signed barred her from telling the story.
Phil Murphy’s campaign required NDAs that prohibited alleged rape victim Katie Brennan and Julie Roginsky, once a key adviser to the governor, from speaking freely about potential misconduct they experienced.
Roginsky had to navigate NDA-related issues during the Katie Brennan scandal and as a result of her employment at Fox News.
Roginsky says she told Murphy about the toxic work environment during the Governor’s 2017 campaign. Roginsky claims that Murphy’s campaign manager, Brendan Gill, called her a “cunt” during an argument but that she was fired from the campaign after she informed Murphy about it.
Ailes resigned on July 21, 2016, less than a month after Carlson filed a sexual harassment lawsuit in the Superior Court of New Jersey against him, in a complaint that alleged she was fired from her program for refusing his sexual advances. After Carlson came forward, six more women told Gabriel Sherman of New York magazine, that Ailes had sexually harassed them and “spoke openly of expecting women to perform sexual favors in exchange for job opportunities.”
Fox filed court papers arguing that Carlson was compelled by her contract to adjudicate her claims in arbitration, but she responded by saying, “Forcing victims of sexual harassment into secret arbitration proceedings is wrong, because it means nobody finds out what really happened.”
The following year, Roginsky filed a lawsuit in the New York Supreme Court against Fox News, Roger Ailes, and Bill Shine, alleging that Ailes offered her a permanent position on The Five if she would have sex with him, and retaliated against her when she refused.
The way women were treated on the campaign and during his administration has obliterated Murphy’s credibility as a national progressive leader.
According to Star-Ledger editorial page Editor Tom Moran, “in Roginsky’s compelling story, Murphy is the chief villain, the inspiration for her efforts, the man who demanded that women like her to sign gag orders and retaliated against them ferociously when they dared to push back.”
Biden signed legislation curbing the use of confidentiality agreements that block victims of sexual harassment from speaking publicly about misconduct in the workplace.
The new law limits “judicial enforceability of pre-dispute nondisclosure and non-disparagement contract clauses” that apply to sexual assault and sexual harassment disputes.
In other words, contract clauses that force a signatory to stay quiet about future instances of sexual assault or harassment will no longer be enforceable. This likely impacts pre-dispute agreements signed by employees as a condition of employment.
“According to experts, 81 percent of women and 43 percent of men have experienced sexual harassment or assault during their lifetime, including one in three women who experienced such misconduct in the workplace, as few as 6 percent of those victims report their experiences,” said Lisa McCormick, one of Murphy’s most ardent critics. “That’s why it is imperative that survivors are not prevented from reporting or publicly disclosing abuse, which is often curtailed by nondisclosure and non-disparagement clauses in contracts.”
“The White House said President Biden thanked U.S. Senator Kirsten Gillibrand, Marsha Blackburn, Mazie Hirono, and Lindsey Graham as well as Representatives Lois Frankel, Cheri Bustos, Ken Buck, David Cicilline, Pramila Jayapal, Morgan Griffith and Jerrold Nadler, for their leadership,” said McCormick. “The omission of Gretchen Carlson and Julie Roginsky, from that list is a slight to all the women who suffered sexual abuse and found themselves alone in the fight for justice.”
White House press secretary Karine Jean-Pierre said Biden had acted on the bipartisan Speak Out Act, which bars the use of nondisclosure agreements that employees or contractors are required to sign, often as a condition of employment.
S. 4524, the “Speak Out Act,” which prohibits judicial enforcement of a nondisclosure clause or non-disparagement clause agreed to before a dispute arises involving sexual assault or sexual harassment.
The new law, among the workplace changes pushed in the wake of the #MeToo movement, applies to any nondisclosure agreements, also known as NDAs, signed before a dispute has occurred.
“Instead of protecting trade secrets as it was initially intended, abusive use of NDAs silence employees and covers up serious and systemic misconduct,” said New York Sen. Kirsten Gillibrand, a Democrat who introduced the measure.
The law would make existing nondisclosure agreements unenforceable. It also would apply to any agreements between providers of goods and services and their customers.
On March 18, 2019, Murphy signed a controversial bill banning mandatory nondisclosure clauses in settlement agreements involving New Jersey workplace discrimination, harassment and retaliation claims, plus outlaws any form of jury waiver in employment agreements, including arbitration.