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California Stops Employers From Seeking To Silence Harassment, Discrimination, and Retaliation

California’s SB 331 – known as the “Silence No More Act” – voids any agreement entered on or after January 1, 2022, that restricts a current or former employee from disclosing factual information about any type of harassment, discrimination, or retaliation.

This new law expands on California’s SB 820 and California’s SB 1300, both passed in 2018 in response to the #MeToo movement, which ban secret settlement agreements covering up allegations of sexual harassment.  The new law goes further, applying the ban to any agreement that seeks to cover up any type of harassment, discrimination, and retaliation allegations.

Settlement Agreements (Code of Civil Procedure § 1001)

(a) Notwithstanding any other law, a provision within a settlement agreement that prevents or restricts the disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action, regarding any of the following, is prohibited:

  1. An act of sexual assault that is not governed by subdivision (a) of Section 1002.
  2. An act of sexual harassment, as defined in Section 51.9 of the Civil Code.
  3. An act of workplace harassment or discrimination, failure to prevent an act of workplace harassment or discrimination, or an act of retaliation against a person for reporting or opposing harassment or discrimination. …

(c) … a provision that shields the identity of the claimant and all facts that could lead to the discovery of the claimant’s identity,may be included within a settlement agreement at the request of the claimant. …

(d) … a provision within a settlement agreement that prevents or restricts the disclosure of factual information related to the claim … that is entered into on or after January 1, 2019, is void as a matter of law and against public policy.

(e) This section does not prohibit the entry or enforcement of a provision in any agreement that precludes the disclosure of the amount paid in settlement of a claim.

(f) In determining the factual foundation of a cause of action for civil damages … a court may consider the pleadings and other papers in the record, or any other findings of the court.

(g) The amendments made to subparagraphs (3) and (4) of subdivision (a) … apply only to agreements entered into on or after January 1, 2022.  All other amendments made to this section … shall not be construed as substantive changes, but instead as merely clarifying existing law.

Employment, Confidentiality, Non-Disparagement & Separation Agreements (Government Code § 12964.5)

(a) (1)  It is an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:

(A) (i) For an employer to require an employee to sign a release of a claim or right under this part.  (ii) … “release of a claim or right” includes requiring an individual to execute a statement that the individual does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.

(B) (i) For an employer to require an employee to sign a non-disparagement agreement or other document to the extent it has the purpose or effect of denying the employee the right to disclose information about unlawful acts in the workplace.  (ii) A non-disparagement or other contractual provision that restricts an employee’s ability to disclose information related to conditions in the workplace shall include, in substantial form, the following language: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”

(2) Any agreement or document in violation of this subdivision is contrary to public policy and shall be unenforceable.

(b) (1) (A) It is an unlawful employment practice for an employer or former employer to include in any agreement related to an employee’s separation from employment any provision that prohibits the disclosure of information about unlawful acts in the workplace.  (B) A non-disparagement or other contractual provision that restricts an employee’s ability to disclose information related to conditions in the workplace shall include, in substantial form, the following language: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”

(2) Any provision in violation of paragraph (1) is against public policy and shall be unenforceable.

(3) This subdivision does not prohibit the inclusion of a general release or waiver of all claims in an agreement related to an employee’s separation from employment. …

(4) An employer offering an employee or former employee an agreement related to that employee’s separation from employment … shall notify the employee that the employee has a right to consult an attorney regarding the agreement and shall provide the employee with a reasonable time period of not less than five business days in which to do so. …

(c) … “information about unlawful acts in the workplace” includes, but is not limited to, information pertaining to harassment or discrimination or any other conduct that the employee has reasonable cause to believe is unlawful.

(d) (1) This section does not apply to a negotiated settlement agreement to resolve an underlying claim under this part that has been filed by an employee in court, before an administrative agency, in an alternative dispute resolution forum, or through an employer’s internal complaint process.  (2) … “negotiated” means that the agreement is voluntary, deliberate, and informed, the agreement provides consideration of value to the employee, and that the employee is given notice and an opportunity to retain an attorney or is represented by an attorney.

(e) This section does not prohibit the entry or enforcement of a provision in any agreement that precludes the disclosure of the amount paid in a severance agreement.

(f) This section does not prohibit an employer from protecting the employer’s trade secrets, proprietary information, or confidential information that does not involve unlawful acts in the workplace.

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Those with questions about their own situation should contact Colby Law Firm.

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