Section 34A-5-114 - Limitations on enforceability of nondisclosure and non-disparagement clauses - Retaliation prohibited(1) As used in this section: (a) "Confidentiality clause" means a nondisclosure clause or a non-disparagement clause.(b) "Employee" means a current or a former employee.(c) "Nondisclosure clause" means an agreement between an employee and employer that: (i) prevents, or has the effect of preventing, an employee from disclosing or discussing: (B) allegations of sexual assault;(C) sexual harassment; or(D) allegations of sexual harassment.(d) "Non-disparagement clause" means an agreement between an employee and employer that prohibits, or has the effect of prohibiting, an employee from making a negative statement that is: (i) about the employer; and(ii) related to: (A) a claim of sexual assault or sexual harassment;(B) a sexual assault dispute; or(C) a sexual harassment dispute.(e) "Post-employment restrictive covenant" means the same as that term is defined in Section 34-51-102.(f) "Proprietary information" means an employer's business plan or customer information.(g) "Retaliate" means taking an adverse action against an employee because the employee made an allegation of sexual harassment or assault, including:(iv) discrimination in the terms, conditions, or privileges of employment.(h) "Sexual assault" means: (i) conduct that would constitute a violation of 18 U.S.C. Secs. 2241 through 2244; or(ii) criminal conduct described in Title 76, Chapter 5, Part 4, Sexual Offenses.(i) "Sexual assault dispute" means a dispute between an employer and the employer's employee relating to alleged sexual assault.(j) "Sexual harassment" means conduct that is a violation of:(i) Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq.; or(ii) Subsection 34A-5-106(1)(a)(i) prohibiting harassment on the basis of sex, sexual orientation, or gender.(k) "Sexual harassment dispute" means a dispute between an employer and the employer's employee relating to alleged sexual harassment.(2)(a) A confidentiality clause regarding sexual misconduct, as a condition of employment, is against public policy and is void and unenforceable.(b) After an employee makes an allegation of sexual harassment or sexual assault, an employer of any sized business, regardless of Subsection 34-5-102(1)(i)(D): (i) may not retaliate against the employee because the employee made an allegation of sexual harassment or assault; or(ii) may not retaliate based on an employee's refusal to enter into a confidentiality clause or an employment contract that, as a condition of employment, contains a confidentiality clause.(c) An employee may, within three business days after the day on which the employee agrees to a settlement agreement that includes a confidentiality clause regarding sexual misconduct, withdraw from the settlement agreement.(3) An employer who attempts to enforce a confidentiality clause in violation of this section: (a) is liable for all costs, including reasonable attorney fees, resulting from legal action to enforce the confidentiality clause; and(b) is not entitled to monetary damages resulting from a breach of a confidentiality clause.(4) This section does not: (a) prohibit an agreement between an employee who alleges sexual assault or sexual harassment and an employer from containing a nondisclosure clause, a non-disparagement clause, or any other clause prohibiting disclosure of: (i) the amount of a monetary settlement; or(ii) at the request of the employee, facts that could reasonably lead to the identification of the employee;(b) prohibit an employer from requiring an employee to:(i) sign a post-employment restrictive covenant; or(ii) agree not to disclose an employer's non-public trade secrets, proprietary information, or confidential information that does not involve illegal acts;(c) authorize an employee to: (i) disclose data otherwise protected by law or legal privilege; or(ii) knowingly make statements or disclosures that are false or made with reckless disregard of the truth;(d) 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;(e) permit a disclosure that would violate state or federal law; or(f) limit other grounds that may exist at law or in equity for the unenforceability of a confidentiality clause.Added by Chapter TBD, 2024 General Session ,§ 1, eff. 2/28/2024, retrospectively operative to 1/1/2023.