Susan Gross Sholinsky Quoted in “Gig Workers Face Unclear Path in Bill to Nix Nondisclosure Pacts”

Varying state standards for what constitutes sexual harassment could undermine independent contractors’ ability to come forward under a new bill awaiting the president’s signature.

The House passed the SPEAK Out Act earlier this month after the bill cleared the Senate by unanimous consent in September. The legislation would nullify some nondisclosure agreements when employees allege conduct that breaks sexual assault and harassment laws.

Gig workers and other independent contractors, who aren’t covered by federal statute, are the most vulnerable worker category to the different ways states define sexual harassment in their laws, attorneys and legal scholars say. They face an uphill battle to nullify their NDAs in states where they’re not protected by discrimination laws like employees, who are mostly covered under federal and state employment statutes. …

Different States, Different Laws

The SPEAK Out Act invalidates nondisclosure and nondisparagement agreements signed before a dispute arises over conduct classified as sexual assault or harassment. While sexual assault is a federal crime, harassment has been legislated differently by states over the years. The bill leaves it to the states to use those definitions to trigger voiding an NDA. …

Some states go further than others when defining that conduct and deciding who is covered by such laws. California, New York, Maryland, and Minnesota, for example, cover independent contractors in their sexual harassment statutes, while Pennsylvania protects only certain workers. Other states have extended protections to such workers, even if not explicitly in their statues.

“Some states have also had court decisions that have interpreted the term ‘employee’ or ‘covered person’ broadly,” said Susan Gross Sholinsky, an attorney at Epstein Becker Green.