The Federal Speak Out Act and California’s Silenced No More Act: Everything Employers Should Know

Following the MeToo Movement, Congress passed a bill called the Speak Out Act, citing a statistic that 81% of women and 43% of men have experienced sexual harassment or assault in their lifetimes. In the workplace, however, 90% of sexual harassment cases go unreported. Because of the prevalence of sexual assault and misconduct in the US as a whole, with professional settings mirroring the same issues, Joe Biden signed the Speak Out Act into law in 2022.

The law, which became effective as of December 7, 2022, received bipartisan support in both the House and the Senate. At a high level, the Speak Out Act prevents employers from enforcing nondisclosure and non-disparagement clauses that employees agreed to before a dispute involving sexual misconduct. In an attempt to prevent sexual assault or harassment victims from being silenced by contractual agreements held by their employers, the Speak Out Act frees victims from the threat of retaliation in the workplace.

Strengthening Prior Laws

The Act follows the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which was signed into law 9 months earlier on March 3, 2022. Together, these two laws help sexual assault victims seek justice for workplace-related crimes without legal obstacles due to formerly-signed contractual agreements.

The bottom line is that no employee expects a colleague, boss, or professional contact to cross personal boundaries in a way that makes them feel unsafe. When sexual assault or sexual harassment does take place, employees should not be held under the thumb of law and stopped from getting the support they need to rebuild their lives.

Taking it Up a Notch: California’s Silenced No More Act

The goal of any responsible human resources arm of an organization should be to keep the company and its employees safe. Before Biden signed the Speak Out Act into law, California bolstered employee protections with the Silenced No More Act, which took effect on January 1, 2022. Notorious for creating some of the most stringent employee protection laws in the country, the state set the stage for what employers may come to expect on a federal level in the years to come.

As early as 2019, Gavin Newsom signed the STAND Act, prohibiting employers from leaning on confidentiality provisions in disputes related to sexual assault and sexual harassment. In 2022, the Silenced No More Act expanded those provisions to all claims of harassment, discrimination, and retaliation as defined by the Fair Employment and Housing Act. Now, nondisclosure and non-disparagement agreements cannot be enforced in any cases of discrimination or harassment, such as age-based discrimination or race-based discrimination.

Remembering the Role of HR

For so long, HR has stepped into the role of protecting the company, but in reality, HR is meant to protect a company and its employees. These laws benefit everyone within an organization; discrimination can exist anywhere in a business, no one is immune to becoming a victim, and we all deserve protection. These laws will have legal implications for companies at the state and federal levels, but those implications maintain a minimum level of responsibility to create a safe workplace. In the end, that’s what matters.