As soon as Senate Bill 121 (S121) was signed, employment attorneys were scratching their heads not only on how to interpret the law but also on how to comply with it. On a close reading, however, the law does not prohibit the very facts upon which it was based—a Stormy Daniels situation. There is no prohibition on anyone—including the very same employer who settled its claims—from buying the exclusive rights to the former employee’s story. This is not necessarily bad news for anyone though. Employers still have an avenue to get confidentiality, and employees have the choice to take additional consideration to keep quiet or to go public with their allegations.

On March 18, 2019, Governor Murphy signed S121, which renders unenforceable, any provision in an employment contract or settlement agreement which had the “purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment.” That new law was effective immediately. Further, the new law required a new, specific statement in any “settlement agreement resolving a discrimination, retaliation, or harassment claim by an employee against an employer.” That statement, bold and prominently placed, was to provide notice that “although the parties may have agreed to keep the settlement and underlying facts confidential, such a provision in an agreement is unenforceable against the employer if the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable.”