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Non-disclosure agreements cannot hide sexual misconduct in the workplace • Louisiana Illuminator

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A new law in Louisiana makes it clear that nondisclosure agreements signed as a condition of employment cannot be used to cover up sexual harassment and hostile acts in the workplace. The law takes effect on August 1.

House Bill 161sponsored by Rep. Michael Bayham, R-Chalmette, mirrors an existing federal law designed to prevent sexual or other harassment of employees. Although the conduct addressed in the new state law is already illegal, supporters said Bayham’s measure will make it clearer what employees should not tolerate.

“Notwithstanding any other provision of law, a confidentiality clause required by an employer and agreed to in advance of a dispute over a hostile work environment or sexual harassment is not legally enforceable,” the law states.

Bayham introduced the bill on behalf of people who had reported inappropriate workplace behavior to him but were reluctant to talk about their problems because of nondisclosure agreements they had signed. He hoped the new state law would make it easier for the public to understand what constitutes illegal behavior.

Representative Bayham wears a striped suit with a red tie.
Rep. Mike Bayham, R-Chalmette. (Allison Allsop)

“Most people who sign non-disclosure agreements are not lawyers,” Bayham said. “People deserve to be treated with dignity at work. … I hope people know they don’t have to suffer in silence.”

Susan East Nelson, executive director of the Louisiana Partnership for Children and Families, worked with Bayham on the bill. She hopes the information will now appear on Louisiana Workforce Commission job postings and be posted in workplaces. That would raise awareness, she said.

Morgan Lamandre of Sexual Trauma Awareness and Response (STAR) also championed Bayham’s bill. As the head of Louisiana’s largest support organization for victims of sexual misconduct, she hopes it will provide clarity for those affected in the workplace.

“You cannot use non-disclosure agreements to cover up illegal or sexually abusive behavior,” Lamandre said. “You can certainly disclose sexual harassment that happens to you.”

While it is illegal for employers to create pre-employment confidentiality agreements to silence people who are harassed in the workplace, it is not illegal to make confidentiality a condition of a legal settlement reached after harassment or hostility has occurred. An agreement to resolve a dispute over harassment may require the person affected to remain silent about the abuse.

This law “does not limit the ability of an individual to enter into a confidential settlement agreement with respect to a hostile work environment or sexual harassment, provided that the agreement is entered into after a report of hostility or harassment has been filed or a dispute has arisen with respect to a hostile work environment or sexual harassment,” the law states.

Against this background, the Louisiana Legislature passed a law in 2018 The law allows a person to ask a judge to waive a confidentiality clause in a legal settlement if they want to recover civil damages for an alleged crime. The bill was introduced by then-Senator JP Morrell, a Democrat who now serves on the New Orleans City Council.

In 2019, Senator Franklin Foil (Republican of Baton Rouge) said sponsored a law which prohibits the state government from including confidentiality clauses in court settlements concerning allegations of sexual misconduct against public officials.

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