In a significant move towards promoting transparency and accountability in the workplace, Virginia recently enacted Virginia Code § 40.1-28.01, which places limitations on employers’ use of nondisclosure and confidentiality agreements concerning claims of sexual assault and harassment. The statute provides that no employer shall require an employee or a prospective employee 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 to a claim of sexual assault or a claim of sexual harassment as a condition of employment. Any such provision is against public policy and is void and unenforceable.

While the term “sexual assault” is not explicitly defined in the statute, the law specifically applies to claims arising under Virginia laws related to rape, forcible sodomy, aggravated sexual battery, and sexual battery. The statute defines sexual harassment as “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.”

Crucially, the law is narrowly tailored to apply to applicants and current employees, arguably leaving room for nondisclosure or confidentiality agreements with former employees. This means that provisions commonly found in severance and settlement agreements, which are executed post-employment, will likely remain unaffected by this legislation.