Louisiana makes it clear: Nondisclosure agreements can’t hide sexual misconduct at work

Confidentiality and non-disclosure agreement form and a pen, business legal document concept. Confidentiality agreement is legal contract between two parties that outlines confidential issues together

A new Louisiana law makes explicit that nondisclosure agreements (NDAs) signed as a condition of employment cannot be used to cover up sexual harassment and hostile acts in the workplace. It takes effect Aug. 1.

House Bill 161, sponsored by Rep. Michael Bayham, R-Chalmette, mirrors a federal law already in place to prevent employee harassment, sexual or otherwise. While the behavior addressed in the new state statute covers is already illegal, supporters said Bayham’s measure will make it more clear what employees shouldn’t tolerate.

“Notwithstanding any provision of law to the contrary, no nondisclosure clause required by an employer and agreed to prior to a hostile work environment dispute or sexual harassment dispute shall be judicially enforceable,” reads the law.

Bayham brought the legislation on behalf of people who told him they were dealing with inappropriate workplace behavior but did not want to come forward 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.

“Most people who sign NDAs aren’t 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 for the Louisiana Partnership for Children and Families, helped work with Bayham on the bill. With the law passed, she is hoping to get the information included on employment posters distributed by the Louisiana Workforce Commission and hung in workplaces. It would raise awareness, she said.

Morgan Lamandre with Sexual Trauma Awareness and Response (STAR) also advocated for Bayham’s bill. As leader of Louisiana’s largest organization providing assistance to sexual misconduct survivors, she hopes it provides clarity to people suffering in the workplace.

“You can’t use NDAs to hide unlawful or sexually assaultive behavior,” Lamandre said. “You can very much disclose sexual harassment happening to you.”

While it is illegal for employers to use pre-employment nondisclosure agreements to silence anyone harassed at work, there’s no prohibition on making confidentiality a condition of a legal settlement reached after harassment or hostility takes place. An agreement reached to resolve a dispute over harassment can require the target to stay silent about the abuse.

This law “shall not restrict the ability of an individual to enter into a confidential settlement agreement relating to a hostile work environment or sexual harassment provided that the agreement is entered into after a report of hostility or harassment is filed or a hostile work environment dispute or sexual harassment dispute has occurred,” the act reads.

With that being said, the Louisiana Legislature passed a law in 2018 that allows a person to petition a judge to lift a confidentiality clause in a legal settlement if he or she wants to seek civil damages for an alleged criminal offense. The bill was sponsored by then-Sen. J.P. Morrell, a Democrat who is now on the New Orleans City Council.

In 2019, Sen. Franklin Foil, R-Baton Rouge, sponsored a law that prohibits state government from including confidentiality clauses in legal settlements over sexual misconduct allegations against state employees.

Bayham’s bill will become law without Gov. Jeff Landry’s signature. The governor’s office didn’t not respond to a question about why Landry didn’t sign the legislation.

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