A new California law protects employees who want to disclose employer harassment or discrimination of employees. The law supplements existing law that protects employees who disclose sexual misconduct at the workplace. On October 27, 2021, “The Silenced No More Act” was signed. It is effective as of January 1, 2022. The law places restrictions on the confidentiality provisions of certain agreements between employees and employers – regarding harassment claims, discrimination claims, and retaliation under the Fair Employment and Housing Act (FEHA).
The Stand Together Against Non-Disclosure Act
Prior to the passage of the Silenced No More Act, California law prohibited settlement agreements from preventing the disclosure of facts regarding civil actions or administrative complaints that involved:
- Sexual assault
- Sexual harassment
- Workplace harassment or discrimination based on sex
- The failure to prevent such acts,
- Retaliation against anyone who reported such as act
- Acts of harassment or discrimination based on sex by the owner of a housing accommodation
Generally, the prior law (called STAND – for Stand Together Against Nondisclosure) that focused on prohibiting nondisclosure of sexual harassment and discrimination was in response to the #MeToo movement.
How the Silenced No More Act expands STAND
The new law makes clear that the prohibition applies to provisions (generally called nondisclosure provisions) that would restrict the disclosure of the above sexual misconduct information. The new law expands the prohibition to agreements entered into on or after January 1, 2022, to include acts of workplace harassment or workplace discrimination – even if the workplace harassment or discrimination is not based on sex – and even if the harassment or discrimination is not based on sex by the owner of a housing accommodation.
The expansion generally includes the prohibition of nondisclosure provisions for harassment or discrimination – based on characteristics protected by the California Fair Employment and Housing Act (FEHA). FEHA makes it illegal for an employer to require an employee to sign a non-disparagement agreement (or other nondisclosure agreement) in return for a raise, bonus, or as a condition of employment (hiring or continued employment).
The Silenced No More Act makes it illegal 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.”
The new law makes these prohibitions unenforceable because they are against public policy. Employer agreements should clarify that employees can indeed disclose information about any workplace unlawful conduct.
Workplace discrimination in the Silenced No More Act includes discrimination based on an employee’s age, ethnic origin, sexual orientation, disability, national origin, religion, race, or pregnancy.
Senator Connie M. Leyva, who wrote the new law, summarized the reason for the new Silenced No More Act. She said, “For far too long, these secret settlements and agreements have reinforced a culture of secrecy that prevents accountability, respect, and justice. Workers in California deserve better than being forced into agreements that protect perpetrators and continue to harm survivors and others around them in the workplace.”
A few key provisions of the new Silenced No More Act
The Silenced No More Act, SB 331, also:
- Keeps the identity of the victim confidential – if requested by the victim. The Silenced No More Act specifically states:
- Notwithstanding [other parts of the statute], a provision that shields the identity of the claimant and all facts that could lead to the discovery of the claimant’s identity, including pleadings filed in court, may be included within a settlement agreement at the request of the claimant. This subdivision does not apply if a government agency or public official is a party to the settlement agreement.
- Keeps the amount of the settlement private – if set forth in the employment agreement.
The Silenced No More Act applies to employment agreements (the hiring or retention of any employee), separation agreements (the discharge or resignation of an employee), and other employment-related agreements that our employment lawyers can explain.
The new law 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.
“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.
Non-disparagement provisions in separation agreements and employment documents can restrict an employee’s ability to disclose information related to “lawful conditions in the workplace,” such as trade secrets, proprietary information, or confidential information that does not involve unlawful acts in the workplace.
The new law also does not prohibit including a waiver or general release of all claims in a separation agreement.
Generally, if the employment or separation agreement includes any language that restricts an employee’s ability to disclose any information should include this disclaimer:
“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.”
Your right to counsel when employers seek a separation agreement
Separation agreements must:
- Inform the employee that he/she has a right to consult an attorney regarding the agreement
- Inform the employee that he/she has “a reasonable time period of not less than five business days” in which to consult with a lawyer.
- Employees can sign a separation agreement before the five days – provided the early signing is knowing, 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, or by providing different terms to employees who sign such an agreement prior to the expiration of such time period.”
Understand your rights. The best course of action if you are leaving a company is to consult with an experienced employment lawyer before you sign any contracts. We’ll explain your rights including the new Silence No More Act that protects employees who disclose improper workplace conduct – even if they’ve already signed a nondisclosure agreement. We’ll also explain if the new law protects you if you already signed a nondisclosure agreement.
If you have questions about employment, separation from employment, efforts by your employer to enforce nondisclosure agreements, or other employee rights questions, call the Miracle Mile Law Group today. You can call us at (888) 244-0706 or contact us for a FREE consultation.