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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Employment and Workers Comp

Date & Time
  • event Date

    Wednesday, February 22, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will provide guidance to employment counsel on the recently enacted Speak Out Act which was signed by President Biden on Dec. 7, 2022. The panel will discuss key issues related to the Speak Out Act, provide an update on recent federal, state, and case law, and address practical considerations for employer clients as they review their agreements that include nondisclosure or nondisparagement clauses.

Faculty

John F. Kuenstler
Partner
Barnes & Thornburg

Mr. Kuenstler dedicates his practice exclusively to the representation of employers in labor and employment and business matters. He counsels and represents a diverse client base on a national and regional basis in virtually all aspects of labor and employment law. Mr. Kuenstler’s experience includes the defense of single- and multi-plaintiff, collective and class action litigation pertaining to wrongful discharge, discrimination, sexual harassment, retaliation, Title VII, ADA, ADEA, Section 1981, FMLA, FLSA, ERISA, USERRA, WARN and OSHA claims before federal and state courts and administrative agencies. He routinely advocates management’s interests in workplace tort, breach of contract, non-compete, non-solicitation and other restrictive covenant cases. In addition to his litigation practice, Mr. Kuenstler also represents clients at all levels of administrative proceedings, including matters before the EEOC, NLRB, OSHA and DOL.

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Nancy Gunzenhauser Popper
Member
Epstein Becker & Green PC

Ms. Popper helps her clients effectively navigate complex state and local employment laws (including sick leave, leaves of absences, hiring laws, and termination laws) and create policies and documents that are user-friendly and readily implemented by HR professionals. HR professionals and in-house counsel also turn to Ms. Popper for assistance in complying with all aspects of the employment relationship, from pre-employment considerations and hiring to terminations and post-employment restrictions. Additionally, she performs internal investigations when allegations of wrongdoing in the workplace arise. Ms. Popper also conducts trainings for employers on a variety of workplace issues, and has led hundreds of anti-harassment training sessions as well as trainings for managers and HR personnel on such issues as leaves and accommodations.

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Kate Dewberry
Partner
Poyner Spruill LLP

Ms. Dewberry counsels and represents employers on employment law issues and litigation arising under federal and state laws covering leave, discrimination, termination, affirmative action, and wage and hour law. She serves as employment counsel in mergers and acquisitions, analyzing due diligence and advising on employment components of purchase agreements and transition plans. Ms. Dewberry represents clients in federal and state court, arbitration, and proceedings before administrative agencies including the Equal Employment Opportunity Commission, the United States Department of Labor, the Office of Federal Contractor Compliance, OSHA, the North Carolina Department of Labor, and the North Carolina Division of Employment Security.

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Description

The Speak Out Act follows the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which was signed into law on Mar. 3, 2022. That law amended the Federal Arbitration Act and gave claimants the option to invalidate pre-dispute arbitration agreements and class waivers regarding claims for sexual assault and sexual harassment. The Speak Out Act bans the enforcement of pre-dispute nondisclosure or nondisparagement clauses in cases involving sexual assault or harassment.

The Speak Out Act applies to agreements (past, present, and future) between an employer and an employee as well as an independent contractor and any claim of sexual assault or harassment brought under federal, state, or tribal law after Dec. 7, 2022. State laws that are equally or more protective of an employee's right to speak out about alleged workplace sexual assault or harassment are not superseded by the Speak Out Act.

Nondisclosure clauses in which employees agree to keep confidential the facts of any future sexual assault or harassment are now unenforceable. Nondisparagement clauses which limit an employee's ability to speak out against an employer in any negative way with respect to a future sexual assault or harassment are unenforceable, too. However, the Speak Out Act does not prohibit an employer and employee from signing a nondisclosure or nondisparagement agreement as a result of a settlement if allowable under applicable state law. Also, employers are allowed to utilize nondisclosure agreements to protect their trade secrets and other proprietary information as well as other permitted activities.

Listen as our authoritative panel of employment attorneys discusses the new Speak Out Act and its protections, the interplay of other more protective laws, and specific conduct that is permitted under it. The panel will also provide guidance on reviewing workplace confidentiality and nondisclosure agreements within the current culture of zero tolerance for sexual assault, harassment, and related misconduct.

Outline

  1. Speak Out Act: key concepts and definitions
  2. New protections
    1. Federal law update
    2. State law update
    3. Case law update
  3. Permitted conduct under the Speak Out Act
  4. Compliance best practices

Benefits

The panel will discuss these and other key issues:

  • What steps should counsel take to ensure compliance with the new Speak Out Act?
  • How can counsel guide clients in navigating the practical and legal considerations of the Speak Out Act?
  • What are best practices and next steps for employers to take to stay on the right side of the law and reduce their liability?