Capitol Report

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February 4, 2019

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters.

Weinberg nondisclosure bill gains momentum in Legislature

A bill that would ban nondisclosure agreements in settlements involving workplace harassment passed the New Jersey Assembly last week and was expected to pass in the state Senate as well. S-121 (Weinberg)/A-1242 (McKeon) gained momentum last week on the heels of the Legislative Oversight Committee’s ongoing investigation into claims that the Murphy administration mishandled claims of a Murphy campaign staffer who was allegedly raped by another staffer, who since became a senior administration official. The New Jersey State Bar Association has underscored problems with the bill as written and urged recommendations to amend the legislation to protect employees while providing a choice for the employee to enter into a confidentiality agreement.

“The NJSBA recognizes the fundamental right of people who are victimized to make a choice to keep their private matters confidential,” the statement read. “Only the victim can decide how best to move forward after having experienced workplace harassment or assault or discrimination.”

Among the NJSBA’s recommendations for amendments, referred to by the association as “employee choice amendments,” is a ban on nondisclosure agreements as a condition of employment as void and unenforceable.

Additional amendments recommended to strengthen the bill include:

-       express permissions to disclose details of an agreement to certain individuals and governmental agencies;

-       a 21-day review period for the employee to consider a nondisclosure provision and a seven-day revocation period following the execution of any agreement that contains such a provision;

-       express permission for employers to promulgate reasonable workplace rules to investigate and remediate such complaints, consistent with applicable law; and

-       a prohibition on retaliatory action against the person who made disclosures permitted under the law.  

The association underscored the sensitive nature of these types of agreements, pointing out that such a broad ban would chill settlements, lead to more litigation, and ultimately lead to a revictimization of the reporting employee. “As a practical reality, employees who settle their claims typically have grave concerns about continuing to provide financially for their families and usually must continue in their careers,” said the NJSBA in its statement.

The NJSBA continues to advocate for amendments to the bill to strengthen its aim to protect employees.