Legislators aim to codify limits on non-disparagement agreements
New Jersey lawmakers are moving to codify court-set limits on confidentiality agreements that would bar workers from speaking publicly about retaliation, harassment, or discrimination.
The Senate Labor Committee on Monday will weigh whether to extend a state prohibition on non-disclosure agreements to other types of confidentiality agreements that could bar speech about workplace abuses.
'We shouldn't be allowing powerful employers to bully people into not speaking out when speaking out is absolutely the right thing to do and should be their right,' said bill sponsor Sen. Declan O'Scanlon (R-Monmouth).
The move follows a unanimous New Jersey Supreme Court from May on the state's existing ban on settlement and contract provisions prohibiting victims from discussing claims of discrimination, harassment, or retaliation. The court ruled that the ban also extends to non-disparagement agreements.
That statute was enacted in 2019 through amendments to the New Jersey Law Against Discrimination sponsored by former state Sen. Loretta Weinberg (D-Bergen). It bars confidentiality agreements in those circumstances but names only non-disclosure agreements.
'The intent of the original Weinberg bill was to address this issue in totality. It didn't, but it's a simple fix. Both myself and Senator O'Scanlon want to ensure there is no possible question of what the legislative intent was,' said bill sponsor Sen. Andrew Zwicker (D-Middlesex).
The absence of non-disparagement and other types of confidentiality agreements drew attention after Neptune Township moved to enforce provisions of its settlement with former police sergeant Christine Savage.
Neptune alleged that, during a 2020 television interview where Savage referred to the township's 'good ol' boy system,' she violated non-disparagement provisions of a settlement reached to resolve her claims of gender-based discrimination, harassment, and retaliation.
A trial court judge agreed with the township, and an appellate panel found the non-disparagement was legal, though they ruled Savage had not run afoul of the settlement's confidentiality provisions because her comments repeated already public information and focused on present conduct rather than past conduct. The Supreme Court then sided with Savage.
The Supreme Court's decision means the bill, first introduced in 2022, would change little if it becomes law, though it would at least settle concerns about a future Supreme Court issuing a different interpretation of the statute.
'Court cases can change. I don't think this one will, but the bill was already in the works, and there's no harm in codifying this,' O'Scanlon said.
O'Scanlon added the bill could serve as a message of support to victims of workplace abuses.
The bill would also remove provisions of existing law that exempt collective bargaining agreements from the prohibition.
Zwicker said that language made it into the original legislation over lawmakers' concerns about overstepping into union negotiations.
He noted collective bargaining contracts typically contain similar workplace protections and said lawmakers would consult with counsel to determine whether it is necessary to end the exemption.
'I don't want to carve out a loophole here in any way, but I want to talk to a labor lawyer about that in particular before deciding whether we should keep that or remove it,' Zwicker said.
The bill is not expected to face many barriers as it moves through the Legislature. The Senate unanimously approved the 2019 legislation and the Assembly passed that bill in an overwhelming bipartisan vote.
Even the removal of the collective bargaining is unlikely to draw naysayers, O'Scanlon said.
'That would be pretty stunning, if they're going to come out in the light of day and say, 'In our contracts, entities should be allowed to bully people and harass them without any accountability,'' he said. 'Good luck. Please come out.'
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