SB 331, also known as the “Silenced No More Act,” went into effect on January 1, 2022, and broadens California Code of Civil Procedure section 1001. Prior to the enactment of SB 331, section 1001 prohibited confidentiality provisions in settlement agreements or non-disparagement agreements in civil actions and administrative complaints which included allegations of sexual assault, sexual harassment, or workplace harassment or discrimination based on sex. Now, with the enactment of SB 331, the prohibited confidentiality provisions apply to any workplace harassment or discrimination claims, not just those based on sex. This includes matters alleging discriminatory acts based on race, religion, national origin, gender, age and other protected characteristics as provided in California Government Code sections 12940 and 12955.
The practical effect of this new law is that employers cannot prevent employees from discussing factual information surrounding unlawful acts of harassment or discrimination in the workplace alleged in a civil lawsuit or administrative charge. Employers may, however, still include provisions to maintain the confidentiality of the amount paid in settlement of the claim, and the parties may still agree to confidentiality in settlements of threated claims that have not been filed in court or with an administrative agency.
SB 331 further prohibits non-disparagement agreements or other similar agreements that an employer may require an employee to sign as a condition of employment or continued employment that restrict an employee’s right to disclose factual information about unlawful acts in the workplace.
SB 331 also applies to any agreement related to a current or former employee’s separation from employment. Any such separation agreement which is not made to resolve previously filed civil claims or administrative complaints must include provisions that: (a) inform the employee of his or her right to consult an attorney; and (b) provide a reasonable time period of at least 5 business days for an employee to consult with an attorney. An employee may sign such an agreement prior to the end of the reasonable time period only if the employee’s decision to do so is “knowing and voluntary” and is not induced by the employer through fraud, misrepresentation, or a threat to withdraw or alter the offer prior to the expiration of the reasonable time period, and so long as the employer does not provide different terms to employees who sign such an agreement prior to the expiration of such time period.
A non-disparagement agreement or other agreement that restricts an employee’s ability to disclose information related to conditions in the workplace must include 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.”
NavBat encourages employers to update their form agreements to ensure compliance with SB 331 and to reach out to NavBat to review and/or revise any form agreements containing provisions that may run afoul of the newly-enacted law.