New Jersey law targets workplace misconduct

By: Adam Taylor
Asbury Park Press

..... The 2019 New Jersey law that banned non-disclosure agreements in workplace harassment and abuse cases has allowed employees to openly discuss their cases without reducing the amounts of complaints that get field or making financial settlements less lucrative or harder to obtain.
..... That's according to a recently released impact study on the law.
..... These findings challenge the notion that NDAs are essential during conflicts, according to Gretchen Carlson, co-founder of Lift Our Voices, a nonprofit working to make workplace safer for employees. "New Jersey's ban on NDAs can serve as a model for other states seeking to empower survivors of workplace misconduct and create a more equitable environment for all employees," Carlson said. Carlson's Lift Our Voices Co_founder Julie Roginsky added, "At a time when transparency in the workplace is the key to protecting survivors of workplace misconduct, those results underscore the New Jersey law's success in protecting the voices of survivors and fostering safer and more equitable work environments,"
..... S121 NJ Legislature (state.nj.gov ) made New Jersey the first state in the country to ban NDAs in workplace discrimination cases, including sexual harassment and sexual assault.
..... Lift Our Voices commissioned the impact study, which was paid for by the Ford Foundation and conducted by peen State Professor Mark Gough. In the report "Breaking the silence: Stakeholders Experiences with New Jersey's non-disclosure Agreement Ban," Gough sought to determine whether the bad had gone too far and burdened businesses, hadn't gone far enough to protect victims of toxic workplace behavior, or crated any unintended consequences.
..... Gough interviewed 29 people: eight employees who field complaints about bad conduct: eight employers or their representatives' and 12 attorneys, six who represent employees and six who represent businesses.
..... In addition to finding that the lack of NDAs empowered plaintiffs to talk about their stories while not being a barrier to settle their complaints, employers' surveys acknowledged the law didn't affect their ability to operate their businesses - although some did so in a decidedly backhanded way.
..... "It's a nothing-burger," said one defense attorney. "MY clients have more important things to worry about." One thing made clear by the study is that public awareness that the NDA ban exists is low for everyone except employment-law attorneys, which is why one of the study's main findings is to better educate employees and employers about it. Only one of the eight employees interviewed knew about the ban before they hired an attorney and only one of the employers knew about it before they were contacted to be part of the study.
..... The study recommends that policymakers in other states considering such bans talk to business owners and human resource officers directly and not rely on special-interest groups that purport to represent business interests. Also, existing laws could be improved that explicitly prohibit non-disparagement clauses, part of an NDA that prevents parties from speaking bad about the other. Attorneys in New Jersey disagree as to whether S121 allows or prohibits the clauses.
..... Employees appreciate the freedom they have to publicly speak about their experience without an NDA. One woman in her mid-20s who was sexually harassed said. "People need to know what they did to me. I don't want anyone else to be at the center of that abuse. I want to tell the world, 'don't work there, don't work for him, run.' And I do."
..... One business owner said they're against the ban because it can harm them. "A claim of sexual harassment is just that, a claim. Sometimes it doesn't even matter what happened. If you're a single mother of three and cry in front of a jury, what chance do I stand?" That's reality. that's business. And that's why I', against it."
..... The employees and employers agreed on one thing - that they think the employment litigation system is unfair - but their reasoning was very different. Employees and their lawyers pointed to the emotional difficulty of going through the process, while employees and their attorneys said it's hard to defend themselves against emotionality charge claims.
..... "This seems to color stakeholders' desire improvements to New Jersey's legislation," the study concludes. "Whereas employees and plaintiff lawyers suggest strengthening damages and expanding the scope of S121, employers and defense lawyers tend to advocate for the status quo or a complete rescission of the law."
..... More education about the law, tightening its language, speaking to individuals over group spokes-people and improving data sets on workplace harassment cases will help. "Doing so will balance employers' legitimate interest in protecting trade secrets with the public's interest in accountability for toxic experiences at work while allowing survivors to retain ownership over their stories, experience and voice," the study noted.

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