Maine Expected to End Mandatory Nondisclosure Agreements for Workplace Discrimination

A new bill introduced in Maine seeks to stop employers from requiring their employees to sign nondisclosure agreements during workplace harassment and discrimination settlements or upon hiring. The bill, LD 1529, was passed in the Maine House and Senate during the last session but paused at Gov. Janet Mills’ desk because of certain legal concerns. It is set to be amended and is expected to pass during this coming session in January.

Nondisclosure agreements prohibit employees from filing lawsuits against their employers, publicly discussing their situations or publicly speaking about the amount they were awarded.

In June, lawmakers decided to halt the enactment of the bill and recall it from Mills’ desk because of hesitations about the bill’s wording. In April, Peter M. Gore, executive vice president of the Maine State Chamber of Commerce testified about the organization’s concern that the bill would effectively end settlements. If employees do not have to keep quiet about the treatment they’ve faced, employers would not benefit at all from settling with monetary rewards.

In a similar move earlier this year in Baltimore, the Fourth Circuit Court in the state ruled settlements in the cases of police brutality could not have gag orders with non-disparagement clauses. Nondisclosure agreements differ from gag orders because gag orders are issued by courts and not two private parties like in the case of an employee and employer.

Related Story: Baltimore No Longer Able to Offer Police Brutality Settlements with Gag Orders

The LD 1529 bill as written would only allow nondisclosure agreements if the employees themselves want them for privacy reasons. It would allow accusers who opt for a nondisclosure at least three weeks to review agreements before signing and seven days to revoke them if they sign. In June, Mills stated two concerns with the wording of the bill: The wording is too complex and the provisions are not consistent with federal and state law. The U.S. Equal Employment Opportunity Commission and the Maine Human Rights Commission have the right to investigate discrimination cases without victims’ testimonies even if employees have promised not to publicly speak. The bill, which would allow employees to request nondisclosure agreements, could prevent both agencies from doing their jobs.

Of the 3,380 workplace discrimination complaints filed with the Maine Human Rights Commission last year, 471 were of sex discrimination. A majority of those 471 included sexual harassment claims. Coverage of the #MeToo movement drew attention to how nondisclosure agreements aided a culture of silence and perpetuity around sexual misconduct. In the high-profile case of Harvey Weinstein, the former producer was able to use his wealth and power to pay out accusers in exchange for their silence.

Related Story: $44M Settlement with Harvey Weinstein Is Not The Win We Think It Is

Mills, a Democrat, was the Attorney General in Maine and has represented individuals who have claimed harassment in legal cases before. Mills has hinted in statements that once LD 1521’s wording is refined, she is planning on passing it.

Mills “looks forward to working with the sponsors to refine the bill more during the upcoming legislative session,” her press secretary Lindsey Crete told the Bangor Daily News.

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