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Speak Out Act and Workplace Harassment: Restricting Enforceability of Nondisclosure and Nondisparagement Clauses

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, February 22, 2023

Recorded event now available

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This CLE webinar will provide guidance to employment counsel on the recently enacted Speak Out Act which was signed by President Biden on Dec. 7, 2022. The panel will discuss key issues related to the Speak Out Act, provide an update on recent federal, state, and case law, and address practical considerations for employer clients as they review their agreements that include nondisclosure or nondisparagement clauses.


The Speak Out Act follows the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which was signed into law on Mar. 3, 2022. That law amended the Federal Arbitration Act and gave claimants the option to invalidate pre-dispute arbitration agreements and class waivers regarding claims for sexual assault and sexual harassment. The Speak Out Act bans the enforcement of pre-dispute nondisclosure or nondisparagement clauses in cases involving sexual assault or harassment.

The Speak Out Act applies to agreements (past, present, and future) between an employer and an employee as well as an independent contractor and any claim of sexual assault or harassment brought under federal, state, or tribal law after Dec. 7, 2022. State laws that are equally or more protective of an employee's right to speak out about alleged workplace sexual assault or harassment are not superseded by the Speak Out Act.

Nondisclosure clauses in which employees agree to keep confidential the facts of any future sexual assault or harassment are now unenforceable. Nondisparagement clauses which limit an employee's ability to speak out against an employer in any negative way with respect to a future sexual assault or harassment are unenforceable, too. However, the Speak Out Act does not prohibit an employer and employee from signing a nondisclosure or nondisparagement agreement as a result of a settlement if allowable under applicable state law. Also, employers are allowed to utilize nondisclosure agreements to protect their trade secrets and other proprietary information as well as other permitted activities.

Listen as our authoritative panel of employment attorneys discusses the new Speak Out Act and its protections, the interplay of other more protective laws, and specific conduct that is permitted under it. The panel will also provide guidance on reviewing workplace confidentiality and nondisclosure agreements within the current culture of zero tolerance for sexual assault, harassment, and related misconduct.



  1. Speak Out Act: key concepts and definitions
  2. New protections
    1. Federal law update
    2. State law update
    3. Case law update
  3. Permitted conduct under the Speak Out Act
  4. Compliance best practices


The panel will discuss these and other key issues:

  • What steps should counsel take to ensure compliance with the new Speak Out Act?
  • How can counsel guide clients in navigating the practical and legal considerations of the Speak Out Act?
  • What are best practices and next steps for employers to take to stay on the right side of the law and reduce their liability?


Dewberry, Kate
Kate Dewberry

Poyner Spruill

Ms. Dewberry counsels and represents employers on employment law issues and litigation arising under federal and state...  |  Read More

Kuenstler, John F.
John F. Kuenstler

Barnes & Thornburg

Mr. Kuenstler dedicates his practice exclusively to the representation of employers in labor and employment and...  |  Read More

Popper, Nancy
Nancy Gunzenhauser Popper

Epstein Becker & Green

Ms. Popper helps her clients effectively navigate complex state and local employment laws (including sick leave, leaves...  |  Read More

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