February 20, 2020

A bill to prohibit requiring NDAs for sexual harassment settlements headed to Guv’s desk

Matthew Reichbach

A bill that supporters say will prevent serial sexual harassers in the workplace passed the Senate floor 23 to 13.

HB 21 will enable victims of sexual harassment, retaliation and discrimination in the workplace to determine if a nondisclosure agreement should be part of a settlement with a former employer. Backers of the bill say it levels the playing field and prevents serial abuse. The bill is now headed to Gov. Michelle Lujan Grisham, who is expected to sign it.

According to Christopher Papalco, a University of New Mexico law student, 38 percent of sexual harassment claims in New Mexico involve repeat offenders. Papalco followed the bill closely and spoke in support of it at every committee hearing. He said that according to a poll he conducted, nearly all claimants who settle harassment cases in the workplace in New Mexico signed nondisclosure agreements.

Although the bill passed the House unanimously last week, passage of the bill in the Senate was far from certain. Senator William Sharer, R-Farmington, said the bill would encourage employees to “destroy a business.”

He said an employee might want $5,000 because “he touched my knee.”

“I don’t have any money and now you’re about to bankrupt me over this,” Sharer said.

The issue has killed careers, say supporters of the bill.

Tim White, an Albuquerque attorney who has testified on behalf of this bill, has said that victims of sexual harassment, retaliation and harassment are often silenced because a former employer requires a nondisclosure agreement as part of the settlement and the victim needs to settle for financial reasons. 

Sen. Daniel Ivey-Soto, D-Albuquerque, who carried the bill in the Senate, said the policy reason behind the bill is to “ensure that the person who was harassed is the person who retains the agency as to whether the underlying facts get disclosed.”

Sen. Gregory Baca, R-Belen, said the bill might backfire and lead to employers refusing to settle cases with victims.

“We make it more difficult for employees to come forward because employers will be more resistant to this kind of settlement,” Baca said.

Senator Joseph Cervantes, D-Las Cruces, seemed to have similar concerns Wednesday when the bill went up before the Senate Judiciary Committee.

“I struggle with the bill. I worry there will be unintended consequences,” Cervantes said Wednesday. “It could have the opposite effect.”

He said he feared the bill would “discourage settlements.”

Partly because supporters of the bill were concerned that Cervantes didn’t support the bill, supporters such as Allegra Carpenter, an Albuquerque lawyer, worried the bill would die in committee. The Senate Judiciary failed to meet Tuesday afternoon due to a lack of quorum. Cervantes chairs that committee.

The senators were “too scattered,” Cervantes told NM Political Report.

Ultimately, the Senate Judiciary Committee unanimously passed the bill Wednesday morning. That enabled it to move on to the Senate floor in the final hours of the legislative session Thursday morning. A bill, SB 64, which passed both the House and Senate, is a companion bill for state employees, say backers. That bill is also on its way to the Governor’s desk. Cervantes was a cosponsor to that bill.