Score One for #MeToo?

On January 31, 2019, the New Jersey Assembly approved Senate Bill 121. The vote was 64 in favor, four against.  There were four abstentions.  S 121 was approved in June 2018 by the New Jersey Senate, by a vote of 34 to one.  The bill now goes to Governor Phil Murphy, who is expected to sign it.

The bill prohibits employers from requiring employees to enter into any employment agreement containing a prospective waiver of a right or remedy under the New Jersey Law Against Discrimination or under any other statute.  Such provisions would be unenforceable as against public policy.  However, S 121 does not apply to any collective bargaining agreement between an employer and the collective bargaining representative of its employees.

S 121 also provides that (a) provisions in an employment or non-disclosure agreement that are intended to conceal information relating to a claim of discrimination, harassment or retaliation are unenforceable as against public policy; and (b) that any agreement settling or resolving a claim of harassment, discrimination or retaliation include a notice that although the parties may have agreed to keep the settlement and underlying facts confidential, such a provision will be unenforceable against an employee who nonetheless reveals details sufficient to identify the employer.

The bill does not apply to non-compete agreements or to agreements that prohibit the disclosure of proprietary or confidential non-public information about the business or operations of an employer.

S 121 and similar bills in other states are widely viewed as a response to pressure from the #MeToo movement; a deterrent for employers who might otherwise ignore complaints of harassment or discrimination, and as motivation for employers to examine their policies and practices with a view to creating a more hospitable workplace for all employees.

Opponents of this type of legislation argue that it limits the options of accusers in that it removes the incentive of employers to settle quickly and for a significant settlement amount.  However, this reasoning presupposes that most claims of harassment, discrimination or retaliation are driven by a desire for a large payout, and discounts entirely the possibility that employees are more likely motivated by a desire to put a stop to abusive behavior without the risk of rendering themselves unemployable.

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