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March 19, 2024
Effective February 28, 2024, Utah added a new section to its Antidiscrimination Act (Act). See Utah Code Ann. § 34A-5-114.
What does the new law prohibit?
The Act renders void, unenforceable, and against public policy any nondisclosure or non-disparagement clause regarding sexual misconduct (defined as sexual assault or harassment) that an employer requires as a condition of employment.
The Act now also expressly prohibits retaliation against an employee for making an allegation of sexual misconduct or refusing to enter into an agreement containing a nondisclosure or non-disparagement clause regarding such sexual misconduct.
To the extent that an employee executes a settlement agreement that includes a nondisclosure or non-disparagement clause related to sexual misconduct, the new law gives an employee three business days to withdraw from the settlement.
If an employer attempts to enforce a prohibited nondisclosure or non-disparagement clause, it will be liable to the employee for the costs and attorney’s fees associated with the legal action and it will not be entitled to damages as a result of any breach of such clause.
What does the new law still allow?
The new law does not prohibit an employer and an employee who has alleged sexual misconduct from entering into an agreement that includes a clause prohibiting disclosure of the amount of any settlement or, at the employee’s request, a clause prohibiting disclosure of facts that reasonably may lead to the identification of the employee.
The new law also does not prohibit an employer from requiring an employee to sign an agreement prohibiting post-employment disclosure of the employer’s trade secrets, proprietary information, or confidential information.
Furthermore, the new law does not “prohibit an employee from discussing sexual misconduct or allegations of sexual misconduct in a civil or criminal case when subpoenaed if the sexual misconduct or allegations of sexual misconduct are against the individual whom the employee alleged engaged in sexual misconduct.”
The law is retroactive.
This law is retroactive to January 1, 2023.
Employer takeaways
Employers with operations in Utah should review and revise, as necessary, their policies, as well as their settlement and severance agreements, to ensure that they do not limit employees or former employees from discussing sexual misconduct.
*Special thanks to Ava Petrellese, our Paralegal, for her contributions to this article.
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 Utah, Pennsylvania, 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.
