verify the compliance of their draft agreements with the broad requirements of the law; California Governor Gavin Newsom recently signed California Senate Bill 331 (SB-331) entitled “Silenced No More Act.” SB-331 expands two of California`s existing laws regarding employee settlement agreements and non-disclosure agreements; in particular, Section 1001 of the Code of Civil Procedure and Section 12964.5 of the Code of the Government of California. SB-331 also amended Section 12964.5 of the California Government Code. Employers who now wish to use non-disparagement agreements (NDAs) as a condition of employment or in a separation agreement must use specific language that states that “nothing in that agreement prevents [an employee] from providing information about illegal acts in the workplace. discuss or disclose, for example.B. Harassment, discrimination or other conduct that [they] have reason to believe is unlawful. SB-331 also provides that an employer offering termination agreements informs the employee that the employee has the right to contact counsel and has at least five days to do so. SB-331 allows an employer and an employee to enter into an agreement prohibiting the disclosure of the amount paid in a severance or settlement agreement. In addition, it provides that an employer may protect its trade secrets, protected information or confidential information that is not related to illegal acts in the workplace. Finally, California Government Code Section 12964.5 does not apply to a negotiated solution that resolves an underlying claim filed by the employee in court, an administrative authority, an alternative dispute resolution forum, or through an employer`s internal complaints process. Unless confidentiality is required by law, court records in general criminal and civil matters are deemed to be available to the public for inspection. For all documents submitted where confidentiality is required by law, the legend or title of the document must indicate “CONFIDENTIAL” with an accompanying reference to the applicable law requiring such confidentiality.

An agreement or understanding between the parties on the confidentiality or sealing of a document submitted to the court is legally inadequate. The law requires court decisions before records are sealed. Given that SB 331 applies to agreements entered into on or after January 1, 2022, employers should conduct a thorough investigation into all their active cases – not just those involving claims by gender – to determine whether some should be resolved by a non-disclosure agreement before the end of this year. Next year, employers could consider taking a more critical approach to their pre-litigation claims, which involve any form of harassment and discrimination, in order to take advantage of confidentiality provisions before they become unavailable after these lawsuits are filed. Sb 331 now goes even further by further restricting the use of non-disclosure provisions in various types of employment contracts, including settlement and separation agreements. The new law amends two of the 2019 laws and will come into force on January 1, 2022. [2] “Negotiated” means that the agreement is voluntary, deliberate and informed; the agreement gives the employee valuable consideration; and the employee is dismissed and has the opportunity to hire a lawyer or is represented by a lawyer. Employers working in the Golden State should prepare to comply with these new restrictions in the coming year. In the meantime, it may be advisable to review ongoing and other disputes, as well as existing employment relationships, to determine whether resolution is possible before the entry into force of SB 331. Employer policies and regulations regarding confidential information and trade secrets should also be reviewed to determine if they are affected by the amended legislation.

First, SB 331 amends Article 1001 of the Code of Civil Procedure (previously published by SB 820 in 2018) to extend the prohibition of confidentiality provisions in agreements concluded from the date of entry into force to all acts of discrimination or harassment in the workplace, and not only on sexual grounds. These include, for example, actions based on race, religion, color, national origin, ancestry, disability, health status, marital status, sex, sex, age, and other protected characteristics, as described in various subdivisions of Articles 12940 and 12955 of the Government Code. . . .