2018 -- S 2687 SUBSTITUTE A

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2018

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A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE -- PROCEDURE GENERALLY --

NONDISCLOSURE AGREEMENTS

     Introduced By: Senators Sheehan, Nesselbush, Jabour, Euer, and Miller

     Date Introduced: March 20, 2018

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 9 of the General Laws entitled "COURTS AND CIVIL PROCEDURE

- PROCEDURE GENERALLY" is hereby amended by adding thereto the following chapter:

CHAPTER 34

NONDISCLOSURE AGREEMENTS PROHIBITED

     9-34-1. Definitions.

     As used in this chapter, the following words and terms shall have the following

meanings:

     (1) "Claim" means an internal workplace complaint, potential civil action in a court of

competent jurisdiction, or a charge or complaint before the Rhode Island commission for human

rights related to sexual assault, sexual harassment, retaliation, or stalking.

     (2) "Commission" means the Rhode Island commission for human rights.

     (3) "Complainant" means an individual that has made an internal workplace complaint of

sexual harassment, sexual assault, retaliation or stalking, has reported a sexual assault to the

police, has filed a charge with the commission, or has made an allegation of sexual assault, sexual

harassment, retaliation, or stalking.

     (4) "Factual information" means information and details that are related to a reported or

alleged incident or claim of sexual assault, sexual harassment, retaliation, stalking or the alleged

perpetrator thereof.

     (5) "Nondisclosure agreement" means a provision within a confidentiality agreement,

settlement agreement, contract, waiver, or other document that prohibits the disclosure of factual

information related to a claim by a party to the agreement.

     (6) "Perpetrator" means an individual who has sexually assaulted or harassed a

complainant or who has allegedly sexually assaulted or harassed the complainant.

     (7) "Respondent" means the party entering into the settlement, agreement, or contract

related to the claim with the complainant.

     (8) "Settlement" means any agreement where anything of value is given to the

complainant raising the claim in exchange for their decision to decline to pursue the claim.

     9-34-2. Prohibitions.

     (a) A provision within a nondisclosure agreement that prevents the disclosure of factual

information related to a claim is hereby prohibited in any settlement, agreement, or contract after

the passage of this act and is declared void as a matter of law and against public policy.

     (1) Provisions within nondisclosure agreements preventing the disclosure of factual

information are void when the factual foundation for the claim establishes a cause of action for

any of the following:

     (i) An act of sexual harassment in violation of chapter 5 of title 28.

     (ii) An act of sexual harassment in violation of chapter 37 of title 34.

     (iii) An act of sexual harassment in violation of chapter 112 of title 42.

     (iv) An act of sexual assault as defined in chapter 37 of title 11.

     (v) An act of retaliation against a person for reporting harassment as defined in chapter 5

of title 28.

     (vi) An act of stalking as defined in chapter 59 of title 11.

     (b) Except as authorized by subsection (c) of this section, a nondisclosure provision

within a settlement agreement that prevents the disclosure of factual information related to the

claim described in subsection (a) of this section that is amended or revised after the passage of

this act is void as a matter of law and public policy.

     (c) Notwithstanding subsection (a) of this section, a provision that prevents the disclosure

of factual information related to the claim may be included within the settlement agreement upon

the explicit, unilateral request of the complainant and will not render the provision void.

     (d) This chapter does not apply to the disclosure of a crime victim's medical or personal

identifying information or other information that is specifically protected from disclosure by law.

     (e) This chapter does not prohibit the entry or enforcement of a provision in any

settlement, agreement, or contract that precludes the disclosure of the amount paid in a settlement

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of a claim.

     (f) At any time after the execution of the settlement, agreement, or contract, complainant

maintains the unilateral right to elect to disclose the factual information related to the claim

despite previously having made a request pursuant to subsection (c) of this section.

     (g) If the complainant elects to disclose the factual information related to the claim

pursuant to subsection (f) of this section, respondent is no longer bound by any nondisclosure

provision previously included at the request of the complainant.

     (h) Any person who enforces or attempts to enforce a provision deemed void and against

public policy pursuant to this chapter shall be liable for the complainant's reasonable attorneys'

fees and costs.

     (i) Any person claiming to be aggrieved by a violation of this chapter may initiate suit in

superior court. An action pursuant to this chapter shall be commenced within three (3) years after

the cause of any such action shall have accrued. All remedies available in common tort actions

shall be available to prevailing plaintiffs. A prevailing plaintiff shall be awarded reasonable

attorneys' fees and costs.

     9-34-3. Severability.

     If any provision of this chapter or the application of this chapter to any person or

circumstance is held invalid by any court of competent jurisdiction, the remainder of the chapter

and the application of the provision to other persons or circumstances shall not be affected. The

invalidity of any section or sections or parts of any section of this chapter shall not affect the

validity of the remainder of the chapter.

     SECTION 2. This act shall take effect on January 1, 2019.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE -- PROCEDURE GENERALLY --

NONDISCLOSURE AGREEMENTS

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     This act would void any provision of a settlement that prohibits disclosure of the factual

information related to a claim of sexual harassment, retaliation for reporting sexual harassment,

and stalking as against public policy.

     This act would take effect upon passage.

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