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Senate of Pennsylvania
Session of 2021 - 2022 Regular Session


Posted: December 31, 2020 11:04 AM
From: Senator Judith L. Schwank
To: All Senate members
Subject: Prohibition of Non-disclosure Agreements
I will shortly re-introduce SB 461 from the 2019-20 session, prohibiting the use and enforcement of non-disclosure agreements (NDAs) in contracts and legal settlements.
We have repeatedly been shocked by news of instances where sexual harassment and misconduct have been kept hidden for years and even decades through employment of these legal devices that legally oblige the parties to keep misconduct silent. NDAs have enabled serial violators and sexual predators to continually abuse persons under their care or supervision, their employees, clients, and others. And because victims commonly are in widely unequal positions of power and resources with the perpetrators, the coercive circumstances can easily end in agreements against the public and the victim's interests.

We can do better.

This proposal reflects changes to SB 999, introduced by me in the 2017-2018 session, that are the result of discussions with women and child advocates to improve its effectiveness. It will make future NDAs in employment contracts and in settlement of criminal or civil actions generally unenforceable to prevent victims from disclosing harassment, abuse or discrimination; or to interfere with victims making civil or criminal allegations of such conduct. It will affirm victims' ability to waive or restrict their rights to resolve a civil claim when that is done with their full understanding. NDAs predating the provisions could be voided by a victim who was a minor when the agreement was made, and agreements involving public officials would expressly not be protected under exemptions to the Right-to-Know law. NDAs also could not prevent the disclosure of conduct subject to Pennsylvania child or elder protection laws or the state Crimes Code. Retaliation would be prohibited for refusing to enter an agreement or for disclosing the conduct, and violations could result in damages and attorney fees and costs.

Introduced as SB392