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Legislators want non-disparagement provisions barred in discrimination cases

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Legislators want non-disparagement provisions barred in discrimination cases

Jul 07, 2022 | 7:00 am ET
By Nikita Biryukov
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Legislators want non-disparagement provisions barred in discrimination cases
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Sen. Andrew Zwicker (D-Middlesex) is a sponsor of a new bill that would bar non-disparagement provisions and similar agreements in cases involving retaliation, harassment, or discrimination in the workplace. (Courtesy of New Jersey Governor's Office)

New Jersey lawmakers are taking a second look at a law banning the use of non-disclosure agreements in certain circumstances after an appellate court ruled similar agreements could be used instead.

New Jersey law explicitly bars the use of non-disclosure agreements in cases involving certain workplace issues, like harassment and retaliation. But an appellate panel in May ruled non-disparagement provisions were still allowed in such cases under the statute.

“When the Legislature overwhelmingly approved doing away with non-disclosure deals, I don’t think anybody envisioned that non-disparagement clauses would rise up to circumvent the ban and add insult to injury for those who have been harmed,” said Sen. Declan O’Scanlon (R-Monmouth), one of the bill’s bipartisan sponsors.

After the appellate ruling, former Senate Majority Leader Loretta Weinberg, who championed the limits on non-disclosure agreements before retiring from the Legislature, said legislators should revisit the law.

The bill, also sponsored by Sen. Andrew Zwicker (D-Middlesex), would explicitly bar non-disparagement provisions and similar agreements in cases involving retaliation, harassment, or discrimination in the workplace.

“While legislation passed in 2019 offers protections against so-called classic NDAs, the use of ‘non-disparagement’ agreements are an equally inappropriate way to squash a person’s voice and take away basic rights. It must be prohibited,” Zwicker said in a statement.

It’s not clear when the bill will be heard. Legislators are in their annual summer recess after passing the state budget and a slew of other bills last week.

The Senate is expected to reconvene during the summer to advance judicial nominations and could move legislation at that time. Assembly Speaker Craig Coughlin (D-Middlesex) last Wednesday said his chamber might return in the summer to pass gun control legislation.

The original bill cleared the Senate unanimously and passed the Assembly in a bipartisan 68-3 vote with five abstentions.