Lawmakers plan to renew discussion this week of a hotly disputed, #MeToo-inspired measure that would prohibit most nondisclosure agreements in employment.

Thom Harnett Submitted photo

“At its core, this bill, if enacted, would prevent employers from forcing prospective employees to waive their rights to ever discuss or make known their experiences regarding harassment in the workplace,” said Rep. Thom Harnett, the Gardiner Democrat who sponsored it.

“No person should ever be placed in the position of having to give up the fundamental right to speak out about workplace harassment and discrimination in order to get or keep a job,” Harnett told colleagues during a public hearing last spring.

Opponents said, however, that nondisclosure deals are useful in settling matters without any admission of guilt and barring them would be counterproductive.

The Maine State Chamber of Commerce said in its testimony that the bill “is predicated on the assumption that nondisclosure agreements are problematic: hiding and therefore implicitly encouraging bad behavior,” which it doubts is a major problem in the state.

The Legislature’s joint Labor and Housing Committee plans a work session Friday to dive into the details and decide whether to endorse the bill again this year as it did last May. If it does, the Legislature could approve it in the coming weeks.

Destie Hohman Sprague, executive director of the Maine Women’s Lobby, urged lawmakers to back it.

Destie Hohman Sprague Maine Women’s Lobby photo

Discrimination and harassment are issues of gender equity and required nondisclosure agreements have too often been used to reinforce power differentials that many workers experience while protecting those who cause harm,” she said.

Kristin Aiello, senior attorney at Disability Rights Maine, said allowing mandatory nondisclosure agreements “means that nearly every civil rights case that is privately settled comes with a muzzle, which has an impact not only on the individual but on greater public policy.”

The flip side of the debate is that forcing every settlement into public view may be unfair to some.

Stephen Gorden, president of the Maine County Commissioners Association, testified that cases are sometimes settled because it’s not worth the time and money to litigate them. Making them public could spread “false allegations” around.

Gorden also said that “settlements are much less likely if the parties cannot mutually agree to cease making further accusations about workplace activities. And, without such ability to mutually settle a case, we should expect more litigation, more costs and more negative impacts on taxpayers.”

It’s a stance that echoes what the Maine Department of Labor told the committee.

“Nondisclosure provisions are not inherently contrary to public policy,” it said, “and can serve legitimate purposes in particular cases.”

The department’s testimony said that without the ability to impose nondisclosure terms that block “making public unflattering or sensitive information,” settling cases will get harder.

“On balance we believe the public interest is better served by preserving the option of nondisclosure provisions rather than legislatively restricting the terms and conditions upon which parties can resolve employment disputes,” Michael Roland, director of the department’s Bureau of Labor Standards, testified.

Attorney Jeffrey Neil Young, who practices in Cumberland, said the Maine Employment Lawyers Association favors the bill.

Young told legislators that mandatory nondisclosure agreements “have proliferated in recent years” and have “served to protect serial sexual harassment perpetrators like Harvey Weinstein and Bill Cosby from discovery of their pernicious and predatory behavior.”

The agreements “shield employers from liability or increased liability in the case of serial harassing and discriminatory conduct, allowing such wanton conduct to continue.”

Publicity, Young said, can help “survivors of harassment and discrimination” and “help provide closure” for them.

The Maine Education Association, which represents many of the state’s teachers, said it backs the measure “in order to provide notice to employers that they can no longer hide behind onerous nondisclosure terms, which are intended to pressure employees to stay silent in matters concerning allegations of harassment and discrimination.”

The National Women’s Law Center said that since 2018, at least 15 states, “have enacted legislation limiting or prohibiting employers from requiring employees to sign nondisclosure agreements as a condition of employment or as part of a settlement agreement.”

A work session on the measure is slated for 1 p.m. Friday.