California Silenced No More Act

What Does the New “Silenced No More Act” Mean for California Workers?

California Employees Are "Silenced No More” in employment, settlement, and separation Agreements. California's SB 331, also known as “The Silenced No More Act”, became law on January 1, 2022 and placed restrictions on confidentiality provisions in certain employment-related settlement agreements related to all claims of harassment, discrimination, and retaliation under the Fair Employment and Housing Act (FEHA). The Silenced No More Act bans confidentiality provisions in settlement agreements relating to the disclosure of underlying factual information relating to any type of harassment, discrimination or retaliation at work including:

  • AGE

  • ETHNICITY

  • DISABILITY

  • SEXUAL ORIENTATION

  • RELIGION

  • NATIONAL ORIGIN

  • PREGNANCY

  • RACE

“The name of the bill says it all, as no worker should ever be silenced from speaking out about their own experience of harassment or discrimination in the workplace,” Senator Connie M. Leyva 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,” stated California State Senator Connie Levya, who wrote the bill.

Expands Law Prohibiting Non-Disclosure Clauses

What do employers and employees need to know about the Act? The Act builds on SB 820, also known as the STAND (Stand Together Against Nondisclosure) Act, which was passed in response to the #MeToo movement.  The STAND Act prohibited the use of confidentiality provisions in settlement agreements for employment (civil or administrative) actions involving claims based on sex (assault, discrimination, retaliation, and harassment).  The Act broadens those restrictions to now include harassment and discrimination claims on the basis of any characteristic protected under the Fair Employment and Housing Act (FEHA), not merely those pertaining to sex.   

SB 331 preserves the confidentiality of the identity of the victim when requested by the victim.  Settlement agreements may still incorporate provisions preventing disclosure of the amount paid to resolve the claims. 

Expands Restrictions on Non-Disparagement Clauses 

Currently, employers are prohibited from requiring an employee to sign a non-disparagement clause denying the employee’s right to disclose information about “unlawful acts in the workplace,” including, but not limited to sexual harassment, in exchange for a raise or bonus, or as a condition of employment or continued employment.  The Act expands the definition of “unlawful acts in the workplace” to include any harassment or discrimination, not solely those based on sex, and “any other conduct that the employee has reasonable cause to believe is unlawful.”   

The Act also prohibits the use of non-disparagement provisions in other types of employment agreements, including separation agreements.  However, the limitations on non-disparagement clauses do not apply to “negotiated” settlement agreements to resolve pending litigation filed in court, before an administrative agency, or in an alternate dispute resolution forum, or to resolve a complaint filed through an employer’s internal complaint process.  Under the Act, “negotiated” means that the agreement: (1) is voluntary, deliberate, and informed, (2) provides consideration to the employee, and (3) gives the employee notice and opportunity to retain counsel.   

Employers may still use non-disparagement provisions in separation agreements and other documents to restrict an employee’s ability to disclose information related to lawful conditions in the workplace.  However, in that circumstance, the following disclaimer must be included:  “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.”   

As well, the Act does not prohibit an employer from protecting its trade secrets, proprietary or confidential information that does not involve unlawful acts in the workplace.  Nor does SB 331 prohibit inclusion of a general release or waiver of all claims in a separation agreement.   

Imposes New Time and Notice Requirements for Separation Agreements

The Act requires employers to: (1) inform employees (current and former) of their right to consult with any attorney regarding any separation agreement, and (2) provide at least five business days for employees to do so.  Employees may choose to sign the agreement prior to the end of the five days, so long as the employee’s decision to shorten the review period is knowing and voluntary, and not induced through fraud, misrepresentation, or threats to withdraw or alter the offer prior to the expiration of the five days, or by a promise to provide different terms for those who sign earlier.