Virginia Bans Non-Disclosure, Confidentiality, and Non-Disparagement Clauses Related to Sexual Harassment Claims in Employment Agreements

As previously reported, Governor Glenn Youngkin signed into law Senate Bill 1086, which requires covered employees to provide entitled eligible employees up to 60 business days for organ donation. 

In March 2023, he authorized Senate Bill 1040, which prohibits employers from using employee Social Security numbers, or any derivatives thereof, for employee identification or access. 

And, in April 2023, Gov. Youngkin approved House Bill 1895, which amends Virginia Code Section 40.1-2.01, to bar employers from requiring employees or prospective employees, as a condition of employment, “to execute or renew any provision in a nondisclosure or confidentiality agreement including any provision relating to non-disparagement, that has the purpose or effect of concealing the details relating… a claim of sexual harassment…” Before the amendment, Section 40.1-2.01 only prohibited non-disclosure and confidentiality clauses related to sexual assault claims. Under Virginia law, sexual harassment means any “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”

As of the enactment’s July 1, 2023, effective date, employment agreement confidentiality, non-disclosure, and non-disparagement clauses that relate to sexual harassment are void and unenforceable. Employers, however, may continue to include those clauses in severance and post-termination settlement agreements.