§ 5-336 — Nondisclosure agreements

§ 5-336. Nondisclosure agreements. 1. (a) Notwithstanding any other\nlaw to the contrary, no employer, its officers or employees shall have\nthe authority to include or agree to include in any settlement,\nagreement or other resolution of any claim, the factual foundation for\nwhich involves discrimination, harassment, or retaliation, in violation\nof laws prohibiting discrimination, including discriminatory harassment\nor retaliation, including but not limited to, article fifteen of the\nexecutive law, any term or condition that would prevent the disclosure\nof the underlying facts and circumstances to the claim or action unless\nthe condition of confidentiality is the complainant's preference.\n (b) Any such term or condition must be provided in writing to all\nparties in plain English, and, if applicable, the primary language of\nthe complainant, and the complainant shall have up to twenty-one days to\nconsider such term or condition. If confidentiality is the complainant's\npreference, such preference shall be memorialized in an agreement signed\nby all parties. For a period of at least seven days following the\nexecution of such agreement, the complainant may revoke the agreement,\nand the agreement shall not become effective or be enforceable until\nsuch revocation period has expired.\n (c) Any such term or condition shall be void to the extent that it\nprohibits or otherwise restricts the complainant from: (i) initiating,\ntestifying, assisting, complying with a subpoena from, or participating\nin any manner with an investigation conducted by the appropriate local,\nstate, or federal agency; or (ii) filing or disclosing any facts\nnecessary to receive unemployment insurance, Medicaid, or other public\nbenefits to which the complainant is entitled.\n 2. Notwithstanding any provision of law to the contrary, any provision\nin a contract or other agreement between an employer or an agent of an\nemployer and any employee, potential employee, or independent contractor\nof that employer entered into on or after January first, two thousand\ntwenty, that prevents the disclosure of factual information related to\nany future claim of discrimination is void and unenforceable unless such\nprovision notifies the employee, potential employee, or independent\ncontractor that it does not prohibit the complainant from speaking with\nlaw enforcement, the equal employment opportunity commission, the state\ndivision of human rights, the attorney general, a local commission on\nhuman rights, or an attorney retained by the employee or potential\nemployee.\n 3. Notwithstanding any other law to the contrary, no release of any\nclaim, the factual foundation for which involves unlawful\ndiscrimination, including discriminatory harassment, or retaliation,\nshall be enforceable, if as part of the agreement resolving such claim:\n (a) the complainant is required to pay liquidated damages for\nviolation of a nondisclosure clause or nondisparagement clause;\n (b) the complainant is required to forfeit all or part of the\nconsideration for the agreement, for violation of a nondisclosure clause\nor nondisparagement clause; or\n (c) it contains or requires any affirmative statement, assertion, or\ndisclaimer by the complainant that the complainant was not in fact\nsubject to unlawful discrimination, including discriminatory harassment,\nor retaliation.\n