KEY CLAUSES
international jurisdictions detailed breakdown +
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This can also extend to civil parties outside the employment/ workplace context (PEI, 6 US states)
Sexual harassment/ assault ( widespread, for example (all passed into law) PEI, Ireland (“sexual misconduct” is defined as including solicitation),US federal Act (pre-hiring contracts and sexual harassment),Arizona,California,Hawaii,Illinois,Louisiana,Maine, New Jersey,New York, Pennsylvania,Utah,Washington State)
Discrimination (widespread, for example PEI,California,Illinois,Maine,Maryland, New York, Pennsylvania,Washington State, Colorado) and more pending (eg Canadian federal Bill)
Harassment/ bullying (widespread, for example PEI,Illinois,Maine, Maryland, New York, New Jersey, Washington State)
Other areas of NDA restriction
Wage violations (passed, Washington State)
Retaliation (eg (all passed) Illinois, Manitoba,Maine,Maryland,New Jersey,New York,,Utah)
Universities :included in other bans above and specifically Ontario Strengthening Post-Secondary Education: faculty-student sexual misconduct and Higher Education (Freedom of Speech) Act (UK) at (12)
Consumer disputes (California)
Medical malpractice (proposed in Washington State following revelations in the media)
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Limits on the use of NDAs by government and using public monies have been passed in 8 US states, including for example California & Arizona and proposed in Canada (federal: Bill S-261)
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Another approach: “an employer cannot request or suggest an NDA for sexual misconduct, harassment, and discrimination” Washington State (Bill 1795)
“(4) It is a violation of this section for an employer to request or require that an employee enter into any agreement provision that is prohibited by this section.”
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Ireland (s3(a)); PEI (s3(a)); federal Canada (S-261 s40.01(1)) (proposed); California Bill 331;
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Passed in (for example) California, Illinois, Maryland, Nevada and Utah
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Passed in US Speak Out Act (federal), PEI, pending Employment (Fairer Workplace, Better Jobs) Act (Saskatchewan), Non-Disclosure Agreements Act (British Columbia)
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Passed in Ireland, PEI, pending Employment (Fairer Workplace, Better Jobs) Act (Saskatchewan), Non-Disclosure Agreements Act (British Columbia)
This list should also include a prospective new employer to whom the employee/ victim speaks in an interview (or in a separate clause, for example PEI in Non-Disclosure Agreements Act s4(7))
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Examples of references in legislation that clarify that an NDA cannot override either statutory rights include Accountability for Workplace Misconduct Act 2022 (Federal US) or reporting to police (eg Victims & Prisoners Act 2024 (UK) (any NDA is void if it prevents a victim speaking to police, a lawyer, regulatory therapeutic and advice services or to a family member where a criminal offence may have been committed
Victims and Prisoners Act 2024 section 17) (UK), also proposed in Texas for reporting child sex abuse to police; New York, NDA signors retain the right to report to police, the Equal Employment Opportunities Commission, HR, or a lawyer
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Many statutes specifically reference and clarify common law and equitable principles eg Impact Assessment amendment of 2023 at section 63 (Canada). This approach could also be taken with NDA legislation (examples coming).
