Utah Restricts NDAs, Strengthens Retaliation Protections for Sexual Harassment Claims
Author: Emily Scace, XpertHR Legal Editor
February 29, 2024
Under a Utah law signed yesterday by Gov. Spencer Cox, employers may no longer enforce confidentiality clauses relating to sexual assault or harassment. The law also extends additional protections against retaliation to employees who allege workplace sexual harassment or sexual assault.
H.B. 55, which is effective retroactively to January 1, 2023, invalidates both nondisparagement clauses that prohibit an employee from making a negative statement about the employer related to sexual assault or sexual harassment and nondisclosure agreements (NDAs) that prevent an employee from disclosing or discussing sexual harassment or assault.
Employers may not attempt to enforce either type of confidentiality clause as a condition of employment. An employer that violates this restriction will be liable for all costs, including attorney fees, resulting from a legal action to enforce the clause, and cannot obtain monetary damages for a breach of the clause.
However, employers may still enter into agreements with employees who allege sexual assault or harassment that prohibit disclosure of the amount of a monetary settlement or, at the employee's request, prohibit disclosure of facts that could reasonably lead to the employee's identification. In addition, employees may be required to sign noncompete agreements and to agree not to disclose trade secrets or other proprietary information.
The law also extends retaliation protections to employees at small employers. While Utah's antidiscrimination law, which prohibits sexual and other forms of harassment, does not apply to private employers with fewer than 15 employees, H.B. 55 prohibits all employers in the state from discharging, suspending, demoting or otherwise discriminating against an employee for:
- Making a complaint of sexual harassment or assault; or
- Refusing to agree to a confidentiality clause as a condition of employment.
Sexual harassment as defined in the law means conduct that violates Title VII of the federal Civil Rights Act of 1964, as well as harassment on the basis of sex, sexual orientation or gender as defined under state law. Sexual assault includes all sexual offenses under the Utah Criminal Code, as well as certain federal sexual offenses.
In enacting H.B. 55, Utah joins a growing list of states that have restricted NDAs and nondisparagement clauses related to sexual harassment and assault. Similar laws are currently on the books in California, Colorado, Hawaii, New York, Oregon, Washington and several other states. At the federal level, the 2022 Speak Out Act made NDAs and nondisparagement clauses related to sexual assault and sexual harassment disputes unenforceable by courts if they were signed before the dispute arose.