Given the broad language of the amendment and its impact on all types of employment-related agreements (including severance pay after recourse to the LAD), it is important that employers, when regulating LAD rights with current or former workers, as well as when reviewing employment contracts and other agreements that may conflict with the new law, Look for a guide to modifying transaction agreements. It should be noted that there seems to be some very frank language in this act that will provide some protection for employers who make comparisons. For example, nowhere in the law is there a language that prevents an employer from requiring the worker to keep the financial terms of the private transaction. While the employee may technically be free to tell their story of harassment or discrimination, it seems that even after the case is resolved, they may still be prevented from revealing the financial terms of the transaction. While many couples only have to consider marital property and debt, many others, especially those with minor children, need a broader agreement. While this new law was originally intended to prohibit confidential settlement agreements in cases of sexual harassment, it has a broader scope. With regard to concordat agreements, employers must now include specific, courageous and prominent language that deals with the right to discrimination, reprisal or harassment. Employers cannot require employees to treat details of the right to discrimination, reprisal or harassment confidentially. This change may lead employers to be reluctant to pay certain claims, especially if the law is interpreted in such a way that the employer cannot keep the dollar value of the transaction confidential. The law appears to provide that any “confidentiality provision” of an employment contract or comparison that conceals details related to discrimination, retaliation or harassment is not applicable. This law does not apply retroactively.
Thus, all previously signed agreements remained in force. It is not clear how this will affect non-disparaging clauses in comparisons. If a worker is free to tell his or her page of history after the comparison, to speak of his or her experience in manifestly unflattering terms, and to address the court of public opinion, what is the incentive for employers to resolve these cases? Will plaintiffs (and their lawyers) suddenly accept much less to settle cases, now that one of the main reasons why an employer would have settled the debt is no longer enforceable? By accepting an MSA and asking a judge to accept it, you are waiving your right to a proceeding.