Have you ever felt uncomfortable in the workplace? Sexual harassment claims are difficult for both employees and management as they require navigating difficult and sometimes traumatic experiences while maintaining work as a team. Ultimately, concerns can be resolved (either with or without litigation), but “next steps” in terms of addressing the complaint or related feelings/issues can linger. Legally, mechanisms such as non-disparagement and non-disclosure clauses have traditionally provided protections for employers fearing potential business/organization backlash from competitors or the public.

Federally, the “Speak Out Act” was signed into law by President Biden about one year ago. The seeks to address concerns made during #MeToo by limiting the applicability of non-disparagement and non-disclosure clauses to sexual harassment complaints. Several jurisdictions have “built upon” the Speak Out Act to provide additional protections – including, most recently, Virginia which recently enacted similar legislation (HB 1895) limiting the applicability of non-disparagement and non-disclosure agreements. I recommend that employers keep the following tips in mind when seeking to apply the federal and Virginia laws:

1. Employers can still include non-disparagement and confidentiality provisions in their restrictive covenant and/or employment agreements.

Both Virginia and federal law prohibit the enforcement/applicability of non-disparagement and confidentiality agreements if the applicable agreement is entered into “before the [sexual harassment] dispute arises.” While there has not been extensive litigation on this benchmark, legislative history suggests that employers can still request non-disparagement and confidentiality provisions as part of a settlement agreement entered into after a complaint is made (either internally or formally). Employers would be best served to clarify in any existing employment or restrictive covenants agreement that such provisions do not apply to complaints involving sexual harassment or assault. A failure to clarify this “carve-out” may result in an entire agreement being deemed enforceable by a court.

2. Employers should plan ahead and expect that employees will be able to speak freely about their experience in the workplace.

Virginia’s new law expanded previous protections by adding sexual harassment to its existing safeguards surrounding sexual assault claims. Sexual harassment is fairly broadly defined. Both the Virginia and federal laws are therefore aimed at providing employees with more – rather than less – opportunities to express their concerns arising out of their employment to the public or other companies/competitors. I recommend that employers provide regular sexual harassment training to both management and employees in an effort to limit the chances that a complaint is made in the first place.

3. Employers should modify policies to clarify the complaint procedure and the ability of employees to discuss their concerns.

As referenced, both the Virginia and federal legislation emphasize the rights of victims to be heard. I recommend that employers revisit their internal complaint procedures to ensure prompt and immediate attention to any concerns voiced (even those that may be “casually” made). Addressing a concern as soon as it is discovered can oftentimes limit the “snowball effect” associated with a sexual harassment concern. Year-end is a good time to examine such policies to make sure that they are as strong as possible as the new year approaches.

Feel free to reach out to me about your workplace and the Virginia and federal protections.