Bars state and local governments from making it a condition of employment that a public employee enter into an NDA that restricts the employee from disclosing factual circumstances concerning their employment. The legislation voids any agreements that prevent such disclosures. NDAs related to trade secrets, employee identity, and attorney work products are exempt from the law. If the employer tries to enforce an unlawful NDA in court, they must pay for the employee’s attorney fees and costs. The Protecting Opportunities and Workers’ Rights (POWR) Act, defines harassment as unwelcome conduct that is 1. subjectively offensive to the employee and 2. objectively offensive to a reasonable person who is a member of the same protected class. The Act expressly provides that to be unlawful, the conduct need not be severe or pervasive if the conduct has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment. The nature of the work or the frequency of past harassment in the workplace is not relevant to determining whether the conduct is unlawful. This means that an employer cannot defend against a harassment claim by asserting, for example, that coarse language and behavior are typical in the workplace at issue. Petty slights, minor annoyances, and lack of good manners are not considered to be harassment unless, when taken individually or under the totality of the circumstances, they meet the new standard. When evaluating whether harassment occurred, courts must consider the frequency of the conduct or communication; number of individuals engaged in the conduct; duration; location; whether the conduct is threatening; whether any power differential exists between the survivor and the harasser; use of epithets, slurs, or other humiliating or degrading conduct; and whether the conduct reflects stereotypes about a protected class. Limits when employers can avoid liability for a supervisor’s harassment. In order to avoid liability for harassment by a supervisor, an employer must show that it established a program reasonably designed to prevent harassment, deter future harassers, and protect employees from harassment and that it has communicated the existence and details of the program to their employees. To show it has established such a program, the employer must show that it has taken prompt, reasonable action to investigate or address harassment. In order to avoid liability for a supervisor’s harassment, the employer must also show that the employee unreasonably did not take advantage of the program.
Full Bill or Law Text:
SB 23-172