Louisiana has joined several other states, including California and New York, to prohibit the enforcement on nondisclosure agreements by employers when they serve to conceal hostile work environments or sexual harassment.
Gov. Jeff Landry allowed House Bill 161, authored by Rep. Michael Bayham (R-Chalmette), to become effective as of Aug. 1 without his signature. HB 161 renders employer NDAs involving cases of sexual harassment or hostile workplaces legally not enforceable, with one exception outlined in the text of the law.
“The provisions of this section shall not restrict the ability of an individual to enter into a confidential settlement agreement relating to a hostile work environment or sexual harassment provided that the agreement is entered into after a report of hostility or harassment is filed or a hostile work environment dispute or sexual harassment dispute has occurred,” the text of the new law states.
An NDA is a legal agreement typically signed by an employee and a business to safeguard sensitive or proprietary information and trade secrets from disclosure to competitors or third parties. Their use in covering up hostile acts in workplaces, however, has come under scrutiny by the “me too” movement – an online effort to support survivors of sexual violence.
The new Louisiana law parallels a similar federal law signed by President Biden in December 2022. That law, the Speak Out Act, bars the enforcement of NDAs and non-disparagement clauses related to sexual assault or harassment “before the dispute arises.”
The phrase “before the dispute arises” contrasts to earlier language in the bill applying to NDAs made “before a lawsuit is filed.” Congress changed the language because the initial version would have discouraged a company from resolving complaints quickly and efficiently prior to litigation, according to the Littler Mendelson P.C. law firm.
The federal law allows NDAs to be used in the resolution of past allegations of workforce sexual harassment, Littler Mendelson reported.
Morgan Lamandre, president and CEO of Sexual Trauma Awareness & Response (STAR) in Baton Rouge, said the new Louisiana law should help to prevent future disputes involving workplace harassment.
“Having a law that spells out NDAs cannot be used in this way works to educate and inform the public that even if you have a pre-employment NDA, and even if for some reason the NDA specifically states you cannot discuss workplace sexual harassment, you can come forward to report it,” Lamandre said in an email to the Louisiana Record. “When survivors can feel safe coming forward, then abusers and enablers can be held accountable. When abusers and enablers are held accountable, that prevents future or further victimization.”
She expressed doubt that workers would knowingly sign agreements promising not to report sexual harassment or abuse if they see or experience it in the workplace.
“Pre-employment nondisclosure agreements were never meant to be used to silence workers about sexual harassment or any conduct that would be criminal,” Lamandre said.
The new state law defines sexual harassment as “unwelcome sexual advances, requests for sexual favors and other verbal, physical or inappropriate conduct of a sexual nature when the conduct explicitly or implicitly affects an individual's employment.”