In response to the #MeToo movement, a number of government legislators and Congress passed legislation to allay their fears about gender inequalities in the workplace1. Critics of the privacy rules argue that employers who have supported such provisions could unwittingly promote a culture of silence around sexual harassment and gender discrimination in the workplace, thereby allowing perpetrators of harassment and discrimination to escape liability. On the other hand, many employers legally use confidentiality clauses to protect victims of harassment and discrimination and to avoid negative publicity resulting from undeserving allegations. Without the protection of a confidentiality agreement, employers are more likely to challenge non-meritorious allegations of discrimination or harassment, in order to avoid any negative publicity resulting from a public transaction. If confidentiality is a central concern for you as an employer, you could consider the following in the transaction agreement: In the Tax Reduction and Employment Act of 2017, Congress amended the federal tax law regarding the deductibility of comparison and legal fees for certain types of claims. 26 U.S.C No. 162 (q). In practical terms, the tax law states that “this chapter does not allow for a deduction for transactions or payments related to harassment or sexual abuse if such billing or payment is subject to a confidentiality agreement. . .
. 26 U.S.C No. 162 (q) (1) (added). The law also prohibits the deduction of “lawyer`s fees related to such a transaction or payment.” 26 U.S.C No. 162 (q) (2). The IRS has not yet published guidelines on the scope of the language in this section. For example, does this language include a general publication of claims that may include the publication of sexual harassment claims, even if the employee has never made any concrete allegations of sexual harassment? Although the prohibition applies only to cases where the worker has claimed a concrete right to sexual harassment, employers must impose higher costs for the settlement of these rights where the comparison implies non-disclosure obligations of workers only if the employer resold those rights in the absence of such obligations. This could be the case if only some people are aware of the agreement and do not want others to know. A number of states have passed legislation to prohibit the application of confidentiality clauses in transaction agreements that shed light on allegations of sexual harassment, other forms of harassment or discrimination.
These countries have taken different approaches to this. It goes without saying that all employers, particularly those working in several jurisdictions, should be kept informed of legislative developments that jeopardize their ability to obtain undisclosed obligations from their workers under transaction agreements. These developments will influence both the structuring of comparisons on certain types of claims and the final decision on whether or not to liquidate these claims. If proposals become mandatory, it may be necessary to change employment data, review and, if necessary, amend employment contracts (as well as transaction agreements) to comply with the new rules.