HB2063

SECTION 1. Chapter 378, Hawaii Revised Statutes, is amended by adding four new sections to part I to be appropriately designated and to read as follows:

"§378- Confidentiality clauses; sexual harassment claims; unenforceable. Except as otherwise provided by federal law, a confidentiality clause in any agreement or contract relating to employment or executed in the course of employment is not enforceable as to sexual harassment or sexual assault claims; provided that nothing in this section shall require any person to involuntarily disclose or disseminate information; provided further that nothing in this section shall prohibit the parties from entering into a confidentiality agreement as part of a legal settlement of a specific claim other than sexual harassment or sexual assault claims.

§378- Right to request confidentiality of settlement. An employee may request confidentiality of a legal settlement to protect their privacy.

§378- Civil penalties. If an employer, respondent, or defendant makes any request to an employee, complainant, or plaintiff, or pressures the employee, complainant, or plaintiff in any way to enter into a confidentiality agreement as part of a legal settlement relating to a sexual harassment or sexual assault claim, each such request shall constitute a separate violation. An employee, complainant, or plaintiff that brings an action pursuant to this section shall be awarded liquidated damages equal to three times the amount of the legal settlement. The penalties provided in this section are cumulative to the remedies and penalties available under all other laws of this State.

§378- Time to review voluntary confidentiality agreement; revocation of consent. If an employee has voluntarily requested a confidentiality agreement, the employee has twenty-one days to review the agreement, and an additional seven days to revoke their consent after executing the confidentiality agreement."

SECTION 2. Chapter 658A, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"§658A- Mandatory arbitration of sexual harassment claims; prohibited. Beginning July 1, 2020, except as otherwise provided by federal law, no agreement to arbitrate shall include language requiring arbitration of sexual harassment or sexual assault claims.

§658A- Employers and employees; voluntary arbitration of sexual harassment or sexual assault claims; confidentiality of award; penalties. (a) In an arbitration proceeding concerning an employee's claim or claims against an employer, the employee may request confidentiality of an arbitrator's award to protect their privacy.

(b) If an employer that is a party to a voluntary arbitration makes any request to an employee, or pressures an employee in any way to enter into a confidentiality agreement concerning an arbitrator's award relating to a sexual harassment or sexual assault claim, each request shall constitute a separate violation. An employee that brings an action pursuant to this section shall be awarded liquidated damages equal to three times the amount of the arbitrator's award. The penalties provided in this section are cumulative to the remedies and penalties available under all other laws of this State.

(c) If an employee has voluntarily requested a confidentiality agreement pursuant to this section as part of an arbitrator's award, the employee has twenty-one days to review the agreement, and an additional seven days to revoke their consent after executing the confidentiality agreement."

SECTION 3. Section 658A-6, Hawaii Revised Statutes, is amended to read as follows:

"[[]§658A-6[]] Validity of agreement to arbitrate. (a) [An] Except as provided in subsection (e) and (f), an agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.

(b) The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.

(c) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.

(d) If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

(e) Except as otherwise provided by federal law, an agreement for mandatory arbitration is not enforceable as to a sexual harassment or sexual assault claim; provided that nothing in this subsection shall prohibit the parties from voluntarily entering arbitration in regard to a specific claim other than sexual harassment or sexual assault claims.

(f) Except as otherwise provided by federal law, a confidentiality clause in an agreement to arbitrate is not enforceable as to a sexual harassment claim or sexual assault claim; provided that nothing in this subsection shall require any person to involuntarily disclose or disseminate information; provided further that nothing in this subsection shall prohibit the parties from voluntarily entering into a confidentiality agreement as part of an arbitration agreement of a specific claim other than sexual harassment or sexual assault claims."

SECTION 4. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2063
THIRTIETH LEGISLATURE, 2020
STATE OF HAWAII