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July 19, 2023
Rhode Island recently amended its Fair Employment Practices Act (FEPA) to prohibit employers from requiring – “as a condition of employment” – that employees sign a nondisclosure or non-disparagement provision “concerning alleged violations of civil rights or alleged unlawful conduct, or any agreement with a clause that requires alleged violations of civil rights remain confidential.” Any contractual provision that violates this prohibition is “void as a violation of public policy.” The amendment became effective immediately. See 2023 RI S.B. 342 (June 22, 2023).
The amendments define “confidential” as “to remain secret and not to be disclosed to another person or entity.” They define a “non-disparagement agreement” as one that “restricts an individual from taking any action to include, but not be limited to, speaking or publicizing information that negatively impacts the other party to the agreement to include the reputation, products, services, employees and management of the protected party.” While “civil rights” is not a defined term in the amended FEPA, the term likely refers to violations of the FEPA itself. The FEPA prohibits employment discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity or expression, disability, age, or country of ancestral origin.
Note that the statute limits its prohibitions to nondisclosure and non-disparagement agreements signed “as a condition of employment.” Thus, it appears that employers still may require confidentiality and non-disparagement provisions in separation agreements or settlement agreements with former employees. But see our article here, where we discuss a February 2023 National Labor Relations Board decision, holding that confidentiality and non-disparagement provisions in severance agreements may violate the National Labor Relations Act.
The author of this article, Patricia Tsipras, is a member of the Bar of Pennsylvania. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Pennsylvania, Rhode Island, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
