Nondisclosure agreements in workplace sexual harassment and assault cases could be a thing of the past if House Bill 21 passes this legislative session.
Rep. Dayan Hochman-Vigil, D-Albuquerque, leads the fight for the legislation. HB 21 would write into law actual protections for employees making claims of sexual harassment or assault—an employer could no longer force an employee to sign a nondisclosure agreement as a condition of employment.
Hochman-Vigil tells SFR the legislation is meant to "address the issue of catch-and-kill settlement agreements."
"We've seen a lot of high profile stories with regards to Harvey Weinstein, The National Enquirer, basically utilizing settlement agreements and non-disclosure clauses as a means of silencing victims of sexual harassment, especially in an employment context," Hochman-Vigil tells SFR at the Roundhouse.
Nondisclosure clauses in sexual misconduct settlements are dangerously effective in keeping accusations under wraps, allowing predators to continue with only a few people knowing the facts of the allegations.
Hochman-Vigil partnered with several trial lawyers from around New Mexico, as well as a University of New Mexico law student, to craft the bill. The first-term legislator says they brought the bill to her because she is also a practicing lawyer.
The bill lands in New Mexico against the backdrop of the #MeToo movement, which sparked a national conversation around how to handle sexual harassment and assault in the workplace in 2017.
According to the National Women's Law Center, 13 states have either limited or completely prohibited employers from forcing employees to sign nondisclosure agreements to be hired or as part of a settlement agreement. As legislative sessions began around the country at the end of 2019 and early 2020, 300 lawmakers in 40 different states and Washington, DC said they want to continue to increase protections for survivors of sexual misconduct in the workplace.
"A lot of people who are victims of this type of behavior usually lose their jobs because they're subject to a hostile work environment," Hochman-Vigil tells SFR. "Settling these types of cases becomes their only means of survival, and so opposing parties will sometimes leverage that need with their request for silence with regards to the factual allegations surrounding the case."
Her bill leaves just one avenue to require a nondisclosure agreement in the settlement of a case: the plaintiff must specifically agree to seal information, whether that's the amount of money agreed to or details that could identify them if made public.
"I think that we're finally starting to see the acknowledgment that this type of behavior is not OK," Hochman-Vigil says. "It's never been OK and it needs to be addressed and rectified. We have to start holding people accountable for imbalances of power."
The proposed legislation has its opponents.
The New Mexico Business Coalition is concerned the bill does not protect employers against false claims.
"An employer may enter into a settlement agreement for reasons other than being guilty of the claim," coalition President and Founder Carla J Sonntag writes in an email. "For example, an employer may choose to settle, knowing the claim to be false, rather than spend countless hours and financial resources defending against the false claim. To then allow the employee to publicize the settlement will only hurt the business. On the other hand, if the claim is substantiated through a fair legal process, we believe that information should not be shielded."
Hochman-Vigil says another point of pushback might be that passing this bill would take away a "tool" that defendants have to reach a settlement and that the legislation would push more people into longer and more expensive litigation.
However, she is hopeful the legislation will pass. This year's lawmaking session is focused around passing the budget, so any proposed legislation that does not have a budgetary element has to get a "message from the governor," showing Gov. Michelle Lujan Grisham's support for it to be heard in the House.
"We did get a message from the governor indicating her interest in this, which means it will be heard this session," Hochman-Vigil says. "I think that the time is right. I think we're doing this in the interest of justice. I think we have a good bill that addresses some of the concerns we've seen from other people on the opposing side of this. We'll see what happens."
If passed, the law would take effect only on agreements signed on or after May 20. The bill is pending in the House Labor, Veterans' and Military Affairs Committee and is on the agenda for its meeting Thursday.
Next up would be the Judiciary Committee, on which Hochman-Vigil sits. The House floor would be the next stop.
The session ends Feb. 20.