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A new bill in California proposes expanding the State’s existing prohibitions on the inclusion of non-disclosure agreements (NDAs) in settlement agreements related to workplace harassment. Senate Bill 331 (SB-331), or the “Silenced No More Act” would expand California’s 2018 STAND (Stand Together Against Non-Disclosures) Act. The Bill has already been passed by California’s State Senate and Assembly, and is currently awaiting the signature of Governor Gavin Newsom.
The STAND Act, which was passed in response to the #Metoo movement, prohibits a settlement agreement from preventing the disclosure of factual information regarding specific acts related to a claim filed in a civil action or a complaint filed in an administrative action. Often, these “secret settlements” shielded companies from potential public outrage against their hostile work environments. Under the STAND Act, California prohibits non-disclosure agreements in cases of workplace sex discrimination, sexual harassment and sexual assault, unless requested by the worker.
SB-331 would amend the STAND Act, expanding its protection to all forms of harassment, discrimination and retaliation in the workplace, not just those based on sex. Under SB-331, workers would be free to publicly release factual information regarding harassment, discrimination and retaliation in the workplace based on, race, religion, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, familial status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status.
In short, SB-331 aims to address areas where the STAND Act fell short. For example, under the STAND act, if an employer sought to settle a suit with an employee regarding sexual harassment and racial discrimination, the employer would not be able to include an NDA regarding the claims of sexual harassment in the settlement agreement, but would be free to include an NDA regarding the claims of racial discrimination. Under SB-331 such a settlement agreement would be prohibited, and the employee would be free to publicly speak about both claims.
Additionally, SB-331 would prohibit employers from requiring employees to sign an NDA regarding unlawful acts in the workplace, such as harassment and discrimination, or any other conduct that the employee believes to be unlawful. This provision of SB-331 would also apply to agreements made in exchange for raises or bonuses, or agreements made as a condition of employment or continued employment, as well as agreements made in relation to an employee’s separation such as a severance agreement.
In a statement last week, State Senator Connie Leyva, who authored both SB-331 and the STAND Act, said, “[f]or 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. I thank my legislative colleagues for their support of SB 331 and look forward to the day when workers are no longer forced to endure this deplorable behavior due to these clauses and agreements.”
With SB-331 already approved by the California Senate and Assembly, all that is left for Governor Gavin Newsom to sign the bill into law. Assuming he does so, SB-331 would become law on January 1, 2022.
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