New York employers: As previously reported on PERKS, Governor Hochul signed an amendment to NY law regulating the use of nondisclosure provisions in settlement agreements. Keep in mind that the amendment expands coverage of this law to claims involving harassment and retaliation, and also to claims asserted by independent contractors.
The amendment clarifies that an individual who prefers the inclusion of such a nondisclosure provision must be given “up to” 21 days to consider such provision, which indicates that the individual may now agree to waive some or all of the 21-day period (which was not previously permitted).
Finally, the amendment adds that in a settlement agreement involving the release of discrimination, harassment or retaliation claims, the agreement:
- may not include liquidated damages for breach of a nondisclosure or non-disparagement provision;
- may not require or include an affirmative statement by the individual that they were not in fact subjected to unlawful discrimination, harassment or retaliation; and
- must include carve out language specifying that the agreement does not preclude the individual from speaking with law enforcement, the EEOC, the NYSDHR, the attorney general, a local commission on human rights, or an attorney.
Please note that this amendment (and the law it amends) does not appear to apply to severance agreements entered into upon termination of employment where no discrimination, harassment or retaliation claims are asserted.