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Virginia’s New Restrictions on Nondisclosure, Confidentiality Agreements Affect the Workplace

A new Virginia statute limits employers’ use of nondisclosure and confidentiality agreements with respect to “sexual assault” as a condition of employment.

Under the new law, “Nondisclosure or Confidentiality Agreements; Sexual Assault, Condition of Employment” (Va. Code § 40.1-28.01), employers may not require job applicants or current employees to execute nondisclosure agreements that would conceal the details of any “sexual assault” claim an employee may have against the employer. The statute provides that any such agreement will be treated as against public policy and therefore, void and unenforceable.

“Sexual assault” is not defined. However, the statute applies to claims arising under Virginia laws on rape (Va. Code § 18.2-61), forcible sodomy (§ 18.2-67.1), aggravated sexual battery (§ 18.2-67.3), and sexual battery (§ 18.2-67.4).

The statute is narrowly tailored to apply to applicants and current employees. It does not restrict nondisclosure or confidentiality agreements with former employees. Therefore, nondisclosure and confidentially provisions in severance and settlement agreements, which typically are executed when an employee is no longer working for an employer, are not affected by the new law.

Virginia employers should review their employment agreements, nondisclosure or confidentially agreements, and employee handbook provisions that applicants and current employees are required to sign and ensure they comply with the new law.

Jackson Lewis P.C. © 2022National Law Review, Volume IX, Number 363
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About this Author

Thomas M. Lucas, Jackson Lewis, complex labor litigation lawyer, disability management attorney
Office Managing Principal

Thomas M. Lucas is Office Managing Principal of the Norfolk, Virginia, office of Jackson Lewis P.C.

Mr. Lucas represents management exclusively in the full range of employment and labor law matters, including employment discrimination litigation and traditional labor law. He has represented corporate clients, including clients in the maritime, ship repair, manufacturing, healthcare and service industries, throughout the Mid-Atlantic Region and nationally for more than 30 years. Prior to entering private practice, Mr. Lucas...

757-648-1424
Milena Radovic Employment Litigation Lawyer Jackson Lewis Law Firm
Associate

Milena Radovic is an Associate in the Norfolk, Virginia, office of Jackson Lewis P.C.

Prior to joining Jackson Lewis, Ms. Radovic was a prosecutor in the Office of the Norfolk Commonwealth’s Attorney.

While attending law school, Ms. Radovic served as a Manuscript Editor of the Richmond Journal of Law and Technology. As a member of the University of Richmond School of Law Trial Advocacy Board, Ms. Radovic competed and finished as an advancing finalist in the Virginia Trial Lawyers Association Trial Advocacy Tournament and regional runner-up in...

757-648-1444
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