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PRINTER'S NO. 381
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
392
Session of
2021
INTRODUCED BY SCHWANK, FONTANA, TARTAGLIONE, HUGHES,
SANTARSIERO, KEARNEY, BREWSTER, SAVAL, COSTA, KANE AND MUTH,
MARCH 11, 2021
REFERRED TO JUDICIARY, MARCH 11, 2021
AN ACT
Amending Title 42 (Judiciary and Judicial Procedure) of the
Pennsylvania Consolidated Statutes, in particular rights and
immunities, providing for contracts and agreements for
nondisclosure of certain information.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 42 of the Pennsylvania Consolidated
Statutes is amended by adding a section to read:
§ 8316.3. Contracts and agreements for nondisclosure of certain
information.
(a) Void contract provisions.--In any contract or agreement
for employment or other services, a provision shall be void and
unenforceable after the effective date of this section if the
provision has the purpose or effect of:
(1) preventing an individual from disclosing or
discussing harassment, abuse or discrimination occurring
during or related to the employment or services to which the
agreement or contract applies;
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(2) requiring an individual to waive any substantive or
procedural rights or remedies relating to a claim of
harassment, abuse or discrimination; or
(3) impairing or attempting to impair the ability of an
individual to report a claim of harassment, abuse or
discrimination or to testify, assist or participate in any
manner with a court proceeding or an investigation related to
a claim of harassment, abuse or discrimination conducted by
the Attorney General or other Federal, State or local agency
or legislative body.
(b) Void settlement agreement provisions.--Except as
provided in subsection (c), a provision in an agreement,
contract or settlement or similar instrument to resolve or
conclude a potential or actual civil or criminal action relating
to harassment, abuse or discrimination, is void and
unenforceable after the effective date of this section if the
provision has the purpose or effect of:
(1) preventing the disclosure of factual information
related to the claims and terms of the settlement agreement;
(2) suppressing or expunging or attempting to suppress
or expunge information relevant to a court proceeding or
investigation into alleged harassment, abuse or
discrimination by the actor or a person under the actor's
authority; or
(3) preventing an individual from testifying, assisting
or participating in any manner in connection with a court
proceeding or investigation related to a claim of harassment,
discrimination or abuse conducted by the Attorney General or
any other Federal, State or local agency or legislative body.
(c) Exception.--Notwithstanding subsection (b), a provision
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that prevents disclosure of information related to a potential
or actual claim of harassment, abuse or discrimination, or to
the terms of a settlement of the claim, may be included in an
agreement, contract or settlement or similar instrument to
resolve or conclude the claim if the individual on whose behalf
the civil action would be or has been brought agrees to the
provision voluntarily and with a full understanding of the terms
of the agreement, contract or settlement or similar instrument.
The provision may limit disclosure of any or all matters related
to the potential or actual claim or settlement and may reserve
the right to testify or participate in any manner in connection
with a court proceeding or investigation related to a claim of
harassment, abuse or discrimination conducted by the Attorney
General or any other Federal, State or local agency or
legislative body in the interests of public safety.
(d) Voidable agreement provisions.--In an agreement,
contract or settlement or similar instrument entered on or
before the effective date of this section, a provision contrary
to this section shall be voidable by a party who was a minor at
the time of execution of the agreement, contract or settlement
or similar instrument.
(e) Retaliation prohibited.--It is unlawful to retaliate
against an individual for:
(1) refusing to enter into an agreement, contract or
settlement or similar instrument that contains a provision
prohibited by this section; or
(2) except with respect to enforcement actions under
subsection (f) for nondisclosure provisions agreed to under
subsection (c):
(i) disclosing or discussing harassment, abuse
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or discrimination;
(ii) reporting a claim of harassment, abuse or
discrimination; or
(iii) testifying, assisting or participating in
any manner in a court proceeding or investigation
related to a claim of harassment, abuse or
discrimination, including in any Federal, State or
local agency or legislative body in the interests of
public safety.
(f) Enforcement.--A person aggrieved of a violation of this
section may, within four years after the violation, bring an
action in a court of competent jurisdiction for compensatory
damages, injunctive relief and reasonable court costs and
attorney fees. The rights and remedies provided in this
subsection are not exclusive and may not preempt other
procedures and remedies available under other applicable laws,
including section 5533 (relating to infancy, insanity or
imprisonment).
(g) Actions to enforce prohibited.--Regardless of the
jurisdiction where an agreement, contract or settlement or
similar instrument was executed, no proceeding or action may be
commenced within this Commonwealth to enforce or recover damages
for violation of a provision in the agreement, contract or
settlement or similar instrument if the provision is known to be
proscribed by this section.
(h) Nonapplicability.--A provision in an agreement, contract
or settlement or similar instrument subject to this section and
to the act of February 14, 2008 (P.L.6, No.3), known as the
Right-to-Know Law, shall not be construed to be exempt from
disclosure under the Right-to-Know Law.
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(i) Reporting of child abuse, elder abuse and criminal
offenses.--This section does not prohibit, prevent, impair or
restrict the reporting to the proper authority of any of the
following:
(1) Suspected child abuse under 23 Pa.C.S. Ch. 63
(relating to child protective services).
(2) Actions that may constitute a criminal offense under
Title 18 (relating to crimes and offenses).
(3) Actions that may constitute exploitation or abuse of
elder or dependent adults as defined in section 103 of the
act of October 7, 2010 (P.L.484, No.70), known as the Adult
Protective Services Act.
(j) Construction.--Nothing in this section may be
interpreted to alter a confidentiality requirement or limitation
on disclosure as set forth in the laws referenced in subsection
(i).
(k) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
"Abuse." Includes the verbal, sexual and physical conduct:
(1) described in the definition of "abuse" in 23 Pa.C.S.
§ 6102(a) (relating to definitions); or
(2) defined as "abuse" under section 103 of the Adult
Protective Services Act.
"Discrimination." Acts prohibited by Federal and State
antidiscrimination laws.
"Harassment." Any of the following:
(1) Offensive or derogatory remarks, the display of
offensive material or gestures and unwelcome physical conduct
based on certain characteristics or affiliations, including
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race, sex, gender identity and expression, sexual
orientation, disability, color, ethnicity and age that
explicitly or implicitly interfere with an individual's
participation in employment, social, community or
professional activities.
(2) Acts proscribed by criminal and civil laws
prohibiting assault and battery, stalking, harassment or
sexual violence and misconduct.
(3) Unwelcome sexual advances, requests for sexual
favors and other verbal or physical conduct of a sexual
nature.
"Retaliation." Engaging in any act or course of conduct
intended to harm, threaten or offend in response to another
person who has taken any lawful action under this section.
Section 2. The provisions of 42 Pa.C.S. § 8316.3 are
severable. If any provision of 42 Pa.C.S. § 8316.3 or its
application to any person or circumstance is held invalid, the
invalidity shall not affect other provisions or applications of
42 Pa.C.S. § 8316.3 which can be given effect without the
invalid provision or application.
Section 3. This act shall take effect in 60 days.
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