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Legislators spar over bill to limit NDAs as survivors’ advocates press for change
Summary
Lawmakers debated Senate Bill 355, which would make certain employer non-disclosure/non-disparagement provisions void where they conceal discrimination, harassment, retaliation or sexual assault; opponents warned the bill could strip workers of private settlement options and create retroactive contract uncertainty.
The Labor and Public Employees Committee heard extended debate March 12 on Senate Bill 355, an act limiting the enforceability of certain non-disclosure and non-disparagement agreements. Sponsor language would render provisions void when they prevent employees or volunteers from discussing conduct they reasonably believe is legally impermissible — a list proponents said includes discrimination, harassment, retaliation and sexual assault.
Senator Samson, speaking in opposition, said the bill risks removing a victim’s right to choose private resolution. “For me, this policy works very well up until you reach the key ingredient, which is we’re denying the right of that victim to make their own decision,” he said, urging that victims be able to decide whether to keep matters private or make them public.
Supporters and the bill’s chair countered that the policy is aimed at protecting the public interest and preventing NDAs from concealing illegal workplace conduct. The chair said the bill’s drafters included carve-outs — for example, non-disclosure provisions contained in settlement agreements would not be covered — and noted that the bill uses a “reasonably believes” standard that courts commonly interpret.
Committee members pressed authors about retroactivity and fiscal impacts. Representative Master Francesco asked how many mediators and board members exist and what the hourly or per-case cost implications might be; the chair replied that a fiscal note would follow and that some language is intended to protect certain prior agreements. Opponents said the bill’s retroactivity could allow parties to keep compensation while rendering past NDAs unenforceable.
The committee considered an amendment (A) that would have explicitly preserved an employee’s right to enter into an NDA at their own discretion; the amendment failed on a recorded vote. Senators and representatives from both sides said they remained open to further drafting to address coercion, retroactivity and clarity around what constitutes a “prohibited” NDA.
The committee ultimately voted to send SB 355 to the floor (JF), with several members recorded as voting no during the roll call. Votes were held open at adjournment to permit members who joined later to register their positions.
