SB 331: Settlement and nondisparagement agreements.
- Session Year: 2021-2022
- House: Senate
- Latest Version Date: 2021-10-07
Existing law prohibits a settlement agreement from preventing the disclosure of factual information regarding specified acts related to a claim filed in a civil action or a complaint filed in an administrative action. These acts include sexual assault, as defined; sexual harassment, as defined; an act of workplace harassment or discrimination based on sex, failure to prevent such an act, or retaliation against a person for reporting such an act; and an act of harassment or discrimination based on sex by the owner of a housing accommodation, as defined, or retaliation against a person for reporting such an act.
This bill would clarify that this prohibition includes provisions which restrict the disclosure of the information described above. For purposes of agreements entered into on or after January 1, 2022, the bill would also expand the prohibition to include acts of workplace harassment or discrimination not based on sex and acts of harassment or discrimination not based on sex by the owner of a housing accommodation.
The California Fair Employment and Housing Act (FEHA) prohibits various actions as unlawful employment practices unless the employer acts based upon a bona fide occupational qualification or applicable security regulations established by the United States or the State of California. In this regard, FEHA makes it an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment or discrimination.
This bill would provide that unlawful acts in the workplace for these purposes include any harassment or discrimination and would instead prohibit an employer from requiring an employee to sign a nondisparagement agreement or other document to the extent it has the purpose or effect of denying the employee the right to disclose information about those acts. The bill would make it an unlawful employment practice for an employer or former employer to include in any agreement related to an employees separation from employment any provision that prohibits the disclosure of information about unlawful acts in the workplace. The bill would provide that any provision in violation of that prohibition would be against public policy and unenforceable. The bill would require a nondisparagement or other contractual provision that restricts an employees ability to disclose information related to conditions in the workplace to include specified language relating to the employees right to disclose information about unlawful acts in the workplace.
Existing law prohibits a settlement agreement from preventing the disclosure of factual information regarding specified acts related to a claim filed in a civil action or a complaint filed in an administrative action. These acts include sexual assault, as defined; sexual harassment, as defined; an act of workplace harassment or discrimination based on sex, failure to prevent such an act, or retaliation against a person for reporting such an act; and an act of harassment or discrimination based on sex by the owner of a housing accommodation, as defined, or retaliation against a person for reporting such an act.
This bill would clarify that this prohibition includes provisions which restrict the disclosure of the information described above. For purposes of agreements entered into on or after January 1, 2022, the bill would also expand the prohibition to include acts of workplace harassment or discrimination not based on sex and acts of harassment or discrimination not based on sex by the owner of a housing accommodation.
The California Fair Employment and Housing Act (FEHA) prohibits various actions as unlawful employment practices unless the employer acts based upon a bona fide occupational qualification or applicable security regulations established by the United States or the State of California. In this regard, FEHA makes it an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment or discrimination.
This bill would provide that unlawful acts in the workplace for these purposes include any harassment or discrimination and would instead prohibit an employer from requiring an employee to sign a nondisparagement agreement or other document to the extent it has the purpose or effect of denying the employee the right to disclose information about those acts. The bill would make it an unlawful employment practice for an employer or former employer to include in any agreement related to an employees separation from employment any provision that prohibits the disclosure of information about unlawful acts in the workplace. The bill would provide that any provision in violation of that prohibition would be against public policy and unenforceable. The bill would require a nondisparagement or other contractual provision that restricts an employees ability to disclose information related to conditions in the workplace to include specified language relating to the employees right to disclose information about unlawful acts in the workplace.
Existing law prohibits a settlement agreement from preventing the disclosure of factual information regarding specified acts related to a claim filed in a civil action or a complaint filed in an administrative action. These acts include sexual assault, as defined; sexual harassment, as defined; an act of workplace harassment or discrimination based on sex, failure to prevent such an act, or retaliation against a person for reporting such an act; and an act of harassment or discrimination based on sex by the owner of a housing accommodation, as defined, or retaliation against a person for reporting such an act.
This bill would clarify that this prohibition includes provisions which restrict the disclosure of the information described above. The For purposes of agreements entered into on or after January 1, 2022, the bill would also expand the prohibition to include acts of workplace harassment or discrimination not based on sex and an act of harassment or discrimination not based on sex by the owner of a housing accommodation.
The California Fair Employment and Housing Act (FEHA) prohibits various actions as unlawful employment practices unless the employer acts based upon a bona fide occupational qualification or applicable security regulations established by the United States or the State of California. In this regard, FEHA makes it an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring to require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment or discrimination.
This bill would provide that unlawful acts in the workplace for these purposes include any harassment or discrimination and would instead prohibit an employer from requiring an employee to sign a nondisparagement agreement or other document to the extent it has the purpose or effect of denying the employee the right to disclose information about those acts. The bill would make it an unlawful employment practice for an employer or former employer to include in any agreement related to an employees separation from employment any provision that prohibits the disclosure of information about unlawful acts in the workplace. The bill would provide that any provision in violation of that prohibition would be against public policy and unenforceable. The bill would require a nondisparagement or other contractual provision that restricts an employees ability to disclose information related to conditions in the workplace to include specified language relating to the employees right to disclose information about unlawful acts in the workplace.
Existing law prohibits a settlement agreement from preventing the disclosure of factual information regarding specified acts related to a claim filed in a civil action or a complaint filed in an administrative action. These acts include sexual assault, as defined; sexual harassment, as defined; an act of workplace harassment or discrimination based on sex, failure to prevent such an act, or retaliation against a person for reporting such an act; and an act of harassment or discrimination based on sex by the owner of a housing accommodation, as defined, or retaliation against a person for reporting such an act.
This bill would clarify that this prohibition includes provisions which restrict the disclosure of the information described above. The bill would also expand the prohibition to include acts of workplace harassment or discrimination not based on sex and an act of harassment or discrimination not based on sex by the owner of a housing accommodation.
The California Fair Employment and Housing Act (FEHA) prohibits various actions as unlawful employment practices unless the employer acts based upon a bona fide occupational qualification or applicable security regulations established by the United States or the State of California. In this regard, FEHA makes it an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment or discrimination.
This bill would provide that unlawful acts in the workplace for these purposes include any harassment or discrimination and would instead prohibit an employer from requiring an employee to sign a nondisparagement agreement or other document to the extent it has the purpose or effect of denying the employee the right to disclose information about those acts. The bill would make it an unlawful employment practice for an employer or former employer to include in any agreement related to an employees separation from employment any provision that prohibits the disclosure of information about unlawful acts in the workplace. The bill would provide that any provision in violation of that prohibition would be against public policy and unenforceable. The bill would require a nondisparagement or other contractual provision that restricts an employees ability to disclose information related to conditions in the workplace to include specified language relating to the employees right to disclose information about unlawful acts in the workplace.
Existing law prohibits a settlement agreement from preventing the disclosure of factual information regarding specified acts related to a claim filed in a civil action or a complaint filed in an administrative action. These acts include sexual assault, as defined; sexual harassment, as defined; an act of workplace harassment or discrimination based on sex, failure to prevent such an act, or retaliation against a person for reporting such an act; and an act of harassment or discrimination based on sex by the owner of a housing accommodation, as defined, or retaliation against a person for reporting such an act.
This bill would clarify that this prohibition includes provisions which restrict the disclosure of the information described above. The bill would also expand the prohibition to include acts of workplace harassment or discrimination not based on sex and an act of harassment or discrimination not based on sex by the owner of a housing accommodation.
The California Fair Employment and Housing Act (FEHA) prohibits various actions as unlawful employment practices unless the employer acts based upon a bona fide occupational qualification or applicable security regulations established by the United States or the State of California. In this regard, FEHA makes it an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment or discrimination.
This bill would provide that unlawful acts in the workplace for these purposes includes include any harassment or discrimination and would instead prohibit an employer from requiring an employee to sign a nondisparagement agreement or other document to the extent it has the purpose or effect of denying the employee the right to disclose information about those acts. The bill would make it an unlawful employment practice for an employer or former employer to include in any agreement related to an employees separation from employment any provision to the extent it has the purpose or effect of denying the employee or former employee the right to disclose that prohibits the disclosure of information about unlawful acts in the workplace. The bill would provide that any provision in violation of that prohibition would be against public policy and unenforceable.
Existing law prohibits a settlement agreement from preventing the disclosure of factual information regarding specified acts related to a claim filed in a civil action or a complaint filed in an administrative action. These acts include sexual assault, as defined; sexual harassment, as defined; an act of workplace harassment or discrimination based on sex, failure to prevent such an act, or retaliation against a person for reporting such an act; and an act of harassment or discrimination based on sex by the owner of a housing accommodation, as defined, or retaliation against a person for reporting such an act.
This bill would clarify that this prohibition includes provisions which restrict the disclosure of the information described above. The bill would also expand the prohibition to include acts of workplace harassment or discrimination not based on sex and an act of harassment or discrimination not based on sex by the owner of a housing accommodation.
The California Fair Employment and Housing Act (FEHA) prohibits various actions as unlawful employment practices unless the employer acts based upon a bona fide occupational qualification or applicable security regulations established by the United States or the State of California. In this regard, FEHA makes it an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment or discrimination.
This bill would provide that unlawful acts in the workplace for these purposes includes any harassment or discrimination and would instead prohibit an employer from requiring an employee to sign a nondisparagement agreement or other document to the extent it has the purpose or effect of denying the employee the right to disclose information about those acts. The bill would make it an unlawful employment practice for an employer or former employer to include in any agreement related to an employees separation from employment any provision to the extent it has the purpose or effect of denying the employee or former employee the right to disclose information about unlawful acts in the workplace. The bill would provide that any provision in violation of that prohibition would be against public policy and unenforceable.
(a)Notwithstanding any other law, a provision within a settlement agreement that prevents or restricts the disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action, regarding any of the following, is prohibited:
(1)An act of sexual assault that is not governed by subdivision (a) of Section 1002.
(2)An act of sexual harassment, as defined in Section 51.9 of the Civil Code.
(3)An act of workplace harassment or discrimination, failure to prevent an act of workplace harassment or discrimination, or an act of retaliation against a person for reporting or opposing harassment or discrimination, as described in subdivisions (a), (h), (i), (j), and (k) of Section 12940 of the Government Code.
(4)An act of harassment or discrimination, or an act of retaliation against a person for reporting harassment or discrimination by the owner of a housing accommodation, as described in Section 12955 of the Government Code.
(b)Notwithstanding any other law, in a civil matter described in paragraphs (1) to (4), inclusive, of subdivision (a), a court shall not enter, by stipulation or otherwise, an order that restricts the disclosure of information in a manner that conflicts with subdivision (a).
(c)Notwithstanding subdivisions (a) and (b), a provision that shields the identity of the claimant and all facts that could lead to the discovery of the claimants 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.
(d)Except as authorized by subdivision (c), a provision within a settlement agreement that prevents or restricts the disclosure of factual information related to the claim described in subdivision (a) that is entered into on or after January 1, 2019, is void as a matter of law and against public policy.
(e)This section does not prohibit the entry or enforcement of a provision in any agreement that precludes the disclosure of the amount paid in settlement of a claim.
(f)In determining the factual foundation of a cause of action for civil damages under subdivision (a), a court may consider the pleadings and other papers in the record, or any other findings of the court.
(g)The amendments made to subparagraphs (3) and (4) of subdivision (a) by Senate Bill 331 of the 202122 Regular Session apply only to agreements entered into on or after January 1, 2022. All other amendments made to this section by Senate Bill 331 of the 2021-22 Regular Session shall not be construed as substantive changes, but instead as merely clarifying existing law.
SEC. 2.Section 12964.5 of the Government Code is amended to read:12964.5.(a)(1)It is an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:
(A)(i)For an employer to require an employee to sign a release of a claim or right under this part.
(ii)As used in this subparagraph, release of a claim or right includes requiring an individual to execute a statement that the individual does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.
(B)(i)For an employer to require an employee to sign a nondisparagement agreement or other document to the extent it has the purpose or effect of denying the employee the right to disclose information about unlawful acts in the workplace.
(ii)A nondisparagement or other contractual provision that restricts an employees ability to disclose information related to conditions in the workplace shall include, in substantial form, 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.
(2)Any agreement or document in violation of this subdivision is contrary to public policy and shall be unenforceable.
(b)(1)(A)It is an unlawful employment practice for an employer or former employer to include in any agreement related to an employees separation from employment any provision that prohibits the disclosure of information about unlawful acts in the workplace.
(B)A nondisparagement or other contractual provision that restricts an employees ability to disclose information related to conditions in the workplace shall include, in substantial form, 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.
(2)Any provision in violation of paragraph (1) is against public policy and shall be unenforceable.
(3)This subdivision does not prohibit the inclusion of a general release or waiver of all claims in an agreement related to an employees separation from employment, provided that the release or waiver is otherwise lawful and valid.
(4)An employer offering an employee or former employee an agreement related to that employees separation from employment as provided in this subdivision shall notify the employee that the employee has a right to consult an attorney regarding the agreement and shall provide the employee with a reasonable time period of not less than five business days in which to do so. An employee may sign such an agreement prior to the end of the reasonable time period as long as the employees decision to accept such shortening of time 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, or by providing different terms to employees who sign such an agreement prior to the expiration of such time period.
(c)As used in this section, information about unlawful acts in the workplace includes, but is not limited to, information pertaining to harassment or discrimination or any other conduct that the employee has reasonable cause to believe is unlawful.
(d)(1)This section 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 employers internal complaint process.
(2)As used in this section, 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.
(e)This section does not prohibit the entry or enforcement of a provision in any agreement that precludes the disclosure of the amount paid in a severance agreement.
(f)This section does not prohibit an employer from protecting the employers trade secrets, proprietary information, or confidential information that does not involve unlawful acts in the workplace.
(a)Notwithstanding any other law, a provision within a settlement agreement that prevents or restricts the disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action, regarding any of the following, is prohibited:
(1)An act of sexual assault that is not governed by subdivision (a) of Section 1002.
(2)An act of sexual harassment, as defined in Section 51.9 of the Civil Code.
(3)An act of workplace harassment or discrimination, failure to prevent an act of workplace harassment or discrimination, or an act of retaliation against a person for reporting or opposing harassment or discrimination, as described in subdivisions (a), (h), (i), (j), and (k) of Section 12940 of the Government Code.
(4)An act of harassment or discrimination, or an act of retaliation against a person for reporting harassment or discrimination by the owner of a housing accommodation, as described in Section 12955 of the Government Code.
(b)Notwithstanding any other law, in a civil matter described in paragraphs (1) to (4), inclusive, of subdivision (a), a court shall not enter, by stipulation or otherwise, an order that restricts the disclosure of information in a manner that conflicts with subdivision (a).
(c)Notwithstanding subdivisions (a) and (b), a provision that shields the identity of the claimant and all facts that could lead to the discovery of the claimants 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.
(d)Except as authorized by subdivision (c), a provision within a settlement agreement that prevents or restricts the disclosure of factual information related to the claim described in subdivision (a) that is entered into on or after January 1, 2019, is void as a matter of law and against public policy.
(e)This section does not prohibit the entry or enforcement of a provision in any agreement that precludes the disclosure of the amount paid in settlement of a claim.
(f)In determining the factual foundation of a cause of action for civil damages under subdivision (a), a court may consider the pleadings and other papers in the record, or any other findings of the court.
(g)The amendments made to subparagraphs (3) and (4) of subdivision (a) by Senate Bill 331 of the 202122 Regular Session apply only to agreements entered into on or after January 1, 2022. All other amendments made to this section by Senate Bill 331 of the 2021-22 Regular Session shall not be construed as substantive changes, but instead as merely clarifying existing law.
SEC. 2.Section 12964.5 of the Government Code is amended to read:12964.5.(a)(1)It is an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:
(A)(i)For an employer to require an employee to sign a release of a claim or right under this part.
(ii)As used in this subparagraph, release of a claim or right includes requiring an individual to execute a statement that the individual does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.
(B)(i)For an employer to require an employee to sign a nondisparagement agreement or other document to the extent it has the purpose or effect of denying the employee the right to disclose information about unlawful acts in the workplace.
(ii)A nondisparagement or other contractual provision that restricts an employees ability to disclose information related to conditions in the workplace shall include, in substantial form, 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.
(2)Any agreement or document in violation of this subdivision is contrary to public policy and shall be unenforceable.
(b)(1)(A)It is an unlawful employment practice for an employer or former employer to include in any agreement related to an employees separation from employment any provision that prohibits the disclosure of information about unlawful acts in the workplace.
(B)A nondisparagement or other contractual provision that restricts an employees ability to disclose information related to conditions in the workplace shall include, in substantial form, 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.
(2)Any provision in violation of paragraph (1) is against public policy and shall be unenforceable.
(3)This subdivision does not prohibit the inclusion of a general release or waiver of all claims in an agreement related to an employees separation from employment, provided that the release or waiver is otherwise lawful and valid.
(4)An employer offering an employee or former employee an agreement related to that employees separation from employment as provided in this subdivision shall notify the employee that the employee has a right to consult an attorney regarding the agreement and shall provide the employee with a reasonable time period of not less than five business days in which to do so. An employee may sign such an agreement prior to the end of the reasonable time period as long as the employees decision to accept such shortening of time 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, or by providing different terms to employees who sign such an agreement prior to the expiration of such time period.
(c)As used in this section, information about unlawful acts in the workplace includes, but is not limited to, information pertaining to harassment or discrimination or any other conduct that the employee has reasonable cause to believe is unlawful.
(d)(1)This section 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 employers internal complaint process.
(2)As used in this section, 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.
(e)This section does not prohibit the entry or enforcement of a provision in any agreement that precludes the disclosure of the amount paid in a severance agreement.
(f)This section does not prohibit an employer from protecting the employers trade secrets, proprietary information, or confidential information that does not involve unlawful acts in the workplace.
(a)Notwithstanding any other law, a provision within a settlement agreement that prevents or restricts the disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action, regarding any of the following, is prohibited:
(1)An act of sexual assault that is not governed by subdivision (a) of Section 1002.
(2)An act of sexual harassment, as defined in Section 51.9 of the Civil Code.
(3)An act of workplace harassment or discrimination, failure to prevent an act of workplace harassment or discrimination, or an act of retaliation against a person for reporting or opposing harassment or discrimination, as described in subdivisions (a), (h), (i), (j), and (k) of Section 12940 of the Government Code.
(4)An act of harassment or discrimination, or an act of retaliation against a person for reporting harassment or discrimination by the owner of a housing accommodation, as described in Section 12955 of the Government Code.
(b)Notwithstanding any other law, in a civil matter described in paragraphs (1) to (4), inclusive, of subdivision (a), a court shall not enter, by stipulation or otherwise, an order that restricts the disclosure of information in a manner that conflicts with subdivision (a).
(c)Notwithstanding subdivisions (a) and (b), a provision that shields the identity of the claimant and all facts that could lead to the discovery of the claimants 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.
(d)Except as authorized by subdivision (c), a provision within a settlement agreement that prevents or restricts the disclosure of factual information related to the claim described in subdivision (a) that is entered into on or after January 1, 2019, is void as a matter of law and against public policy.
(e)This section does not prohibit the entry or enforcement of a provision in any agreement that precludes the disclosure of the amount paid in settlement of a claim.
(f)In determining the factual foundation of a cause of action for civil damages under subdivision (a), a court may consider the pleadings and other papers in the record, or any other findings of the court.
(g)The amendments made to subparagraphs (3) and (4) of subdivision (a) by Senate Bill 331 of the 202122 Regular Session apply only to agreements entered into on or after January 1, 2022. All other amendments made to this section by Senate Bill 331 of the 2021-22 Regular Session shall not be construed as substantive changes, but instead as merely clarifying existing law.
SEC. 2.Section 12964.5 of the Government Code is amended to read:12964.5.(a)(1)It is an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:
(A)(i)For an employer to require an employee to sign a release of a claim or right under this part.
(ii)As used in this subparagraph, release of a claim or right includes requiring an individual to execute a statement that the individual does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.
(B)(i)For an employer to require an employee to sign a nondisparagement agreement or other document to the extent it has the purpose or effect of denying the employee the right to disclose information about unlawful acts in the workplace.
(ii)A nondisparagement or other contractual provision that restricts an employees ability to disclose information related to conditions in the workplace shall include, in substantial form, 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.
(2)Any agreement or document in violation of this subdivision is contrary to public policy and shall be unenforceable.
(b)(1)(A)It is an unlawful employment practice for an employer or former employer to include in any agreement related to an employees separation from employment any provision that prohibits the disclosure of information about unlawful acts in the workplace.
(B)A nondisparagement or other contractual provision that restricts an employees ability to disclose information related to conditions in the workplace shall include, in substantial form, 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.
(2)Any provision in violation of paragraph (1) is against public policy and shall be unenforceable.
(3)This subdivision does not prohibit the inclusion of a general release or waiver of all claims in an agreement related to an employees separation from employment, provided that the release or waiver is otherwise lawful and valid.
(4)An employer offering an employee or former employee an agreement related to that employees separation from employment as provided in this subdivision shall notify the employee that the employee has a right to consult an attorney regarding the agreement and shall provide the employee with a reasonable time period of not less than five business days in which to do so. An employee may sign such an agreement prior to the end of the reasonable time period as long as the employees decision to accept such shortening of time 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, or by providing different terms to employees who sign such an agreement prior to the expiration of such time period.
(c)As used in this section, information about unlawful acts in the workplace includes, but is not limited to, information pertaining to harassment or discrimination or any other conduct that the employee has reasonable cause to believe is unlawful.
(d)(1)This section 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 employers internal complaint process.
(2)As used in this section, 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.
(e)This section does not prohibit the entry or enforcement of a provision in any agreement that precludes the disclosure of the amount paid in settlement of a claim. a severance agreement.
(f)This section does not prohibit an employer from protecting the employers trade secrets, proprietary information, or confidential information that does not involve unlawful acts in the workplace.
(a)Notwithstanding any other law, a provision within a settlement agreement that prevents or restricts the disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action, regarding any of the following, is prohibited:
(1)An act of sexual assault that is not governed by subdivision (a) of Section 1002.
(2)An act of sexual harassment, as defined in Section 51.9 of the Civil Code.
(3)An act of workplace harassment or discrimination, failure to prevent an act of workplace harassment or discrimination, or an act of retaliation against a person for reporting or opposing harassment or discrimination, as described in subdivisions (a), (h), (i), (j), and (k) of Section 12940 of the Government Code.
(4)An act of harassment or discrimination, or an act of retaliation against a person for reporting harassment or discrimination by the owner of a housing accommodation, as described in Section 12955 of the Government Code.
(b)Notwithstanding any other law, in a civil matter described in paragraphs (1) to (4), inclusive, of subdivision (a), a court shall not enter, by stipulation or otherwise, an order that restricts the disclosure of information in a manner that conflicts with subdivision (a).
(c)Notwithstanding subdivisions (a) and (b), a provision that shields the identity of the claimant and all facts that could lead to the discovery of the claimants 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.
(d)Except as authorized by subdivision (c), a provision within a settlement agreement that prevents or restricts the disclosure of factual information related to the claim described in subdivision (a) that is entered into on or after January 1, 2019, is void as a matter of law and against public policy.
(e)This section does not prohibit the entry or enforcement of a provision in any agreement that precludes the disclosure of the amount paid in settlement of a claim.
(f)In determining the factual foundation of a cause of action for civil damages under subdivision (a), a court may consider the pleadings and other papers in the record, or any other findings of the court.
SEC. 2.Section 12964.5 of the Government Code is amended to read:12964.5.(a)(1)It is an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:
(A)(i)For an employer to require an employee to sign a release of a claim or right under this part.
(ii)As used in this subparagraph, release of a claim or right includes requiring an individual to execute a statement that the individual does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.
(B)(i)For an employer to require an employee to sign a nondisparagement agreement or other document to the extent it has the purpose or effect of denying the employee the right to disclose information about unlawful acts in the workplace.
(ii)A nondisparagement or other contractual provision that restricts an employees ability to disclose information related to conditions in the workplace shall include, in substantial form, 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.
(2)Any agreement or document in violation of this subdivision is contrary to public policy and shall be unenforceable.
(b)(1)(A)It is an unlawful employment practice for an employer or former employer to include in any agreement related to an employees separation from employment any provision that prohibits the disclosure of information about unlawful acts in the workplace.
(B)A nondisparagement or other contractual provision that restricts an employees ability to disclose information related to conditions in the workplace shall include, in substantial form, 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.
(2)Any provision in violation of paragraph (1) is against public policy and shall be unenforceable.
(3)This subdivision does not prohibit the inclusion of a general release or waiver of all claims in an agreement related to an employees separation from employment, provided that the release or waiver is otherwise lawful and valid.
(4)An employer offering an employee or former employee an agreement related to that employees separation from employment as provided in this subdivision shall notify the employee that the employee has a right to consult an attorney regarding the agreement and shall provide the employee with a reasonable time period of not less than five business days in which to do so. An employee may sign such an agreement prior to the end of the reasonable time period as long as the employees decision to accept such shortening of time 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, or by providing different terms to employees who sign such an agreement prior to the expiration of such time period.
(c)As used in this section, information about unlawful acts in the workplace includes, but is not limited to, information pertaining to harassment or discrimination or any other conduct that the employee has reasonable cause to believe is unlawful.
(d)(1)This section 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 employers internal complaint process.
(2)As used in this section, 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.
(e)This section does not prohibit the entry or enforcement of a provision in any agreement that precludes the disclosure of the amount paid in settlement of a claim.
(f)This section does not prohibit an employer from protecting the employers trade secrets, proprietary information, or confidential information that does not involve unlawful acts in the workplace.
(a)Notwithstanding any other law, a provision within a settlement agreement that prevents or restricts the disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action, regarding any of the following, is prohibited:
(1)An act of sexual assault that is not governed by subdivision (a) of Section 1002.
(2)An act of sexual harassment, as defined in Section 51.9 of the Civil Code.
(3)An act of workplace harassment or discrimination, failure to prevent an act of workplace harassment or discrimination, or an act of retaliation against a person for reporting or opposing harassment or discrimination, as described in subdivisions (a), (h), (i), (j), and (k) of Section 12940 of the Government Code.
(4)An act of harassment or discrimination, or an act of retaliation against a person for reporting harassment or discrimination by the owner of a housing accommodation, as described in Section 12955 of the Government Code.
(b)Notwithstanding any other law, in a civil matter described in paragraphs (1) to (4), inclusive, of subdivision (a), a court shall not enter, by stipulation or otherwise, an order that restricts the disclosure of information in a manner that conflicts with subdivision (a).
(c)Notwithstanding subdivision subdivisions (a) and (b), a provision that shields the identity of the claimant and all facts that could lead to the discovery of the claimants 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.
(d)Except as authorized by subdivision (c), a provision within a settlement agreement that prevents or restricts the disclosure of factual information related to the claim described in subdivision (a) that is entered into on or after January 1, 2019, is void as a matter of law and against public policy.
(e)This section does not prohibit the entry or enforcement of a provision in any agreement that precludes the disclosure of the amount paid in settlement of a claim.
(f)In determining the factual foundation of a cause of action for civil damages under subdivision (a), a court may consider the pleadings and other papers in the record, or any other findings of the court.
SEC. 2.Section 12964.5 of the Government Code is amended to read:12964.5.(a)(1)It is an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:
(A)(i)For an employer to require an employee to sign a release of a claim or right under this part.
(ii)As used in this subparagraph, release of a claim or right includes requiring an individual to execute a statement that the individual does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.
(B)For an employer to require an employee to sign a nondisparagement agreement or other document to the extent it has the purpose or effect of denying the employee the right to disclose information about unlawful acts in the workplace.
(2)Any agreement or document in violation of this subdivision is contrary to public policy and shall be unenforceable.
(b)(1)It is an unlawful employment practice for an employer or former employer to include in any agreement related to an employees separation from employment any provision to the extent it has the purpose or effect of denying the employee or former employee the right to disclose that prohibits the disclosure of information about unlawful acts in the workplace.
(2)Any provision in violation of paragraph (1) is against public policy and shall be unenforceable.
(3)This subdivision does not prohibit the inclusion of a general release or waiver of all claims in an agreement related to an employees separation from employment, provided that the release or waiver is otherwise lawful and valid.
(4)An employer offering an employee or former employee an agreement related to that employees separation from employment as provided in this subdivision shall notify the employee that the employee has a right to consult an attorney regarding the agreement and shall provide the employee with a reasonable time period of not less than five business days in which to do so. An employee may sign such an agreement prior to the end of the reasonable time period as long as the employees decision to accept such shortening of time 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, or by providing different terms to employees who sign such an agreement prior to the expiration of such time period.
(c)As used in this section, information about unlawful acts in the workplace includes, but is not limited to, information pertaining to harassment or discrimination or any other unlawful or potentially unlawful conduct. conduct that the employee has reasonable cause to believe is unlawful.
(d)(1)This section 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, alternative dispute resolution forum, or through an employers internal complaint process.
(2)As used in this section, negotiated means that the agreement is voluntary, deliberate, and informed, 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.
(e)This section does not prohibit the entry or enforcement of a provision in any agreement that precludes the disclosure of the amount paid in settlement of a claim.
(f)This section does not prohibit an employer from protecting the employers trade secrets, proprietary information, or confidential information that does not involve unlawful acts in the workplace.
(a)Notwithstanding any other law, a provision within a settlement agreement that prevents or restricts the disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action, regarding any of the following, is prohibited:
(1)An act of sexual assault that is not governed by subdivision (a) of Section 1002.
(2)An act of sexual harassment, as defined in Section 51.9 of the Civil Code.
(3)An act of workplace harassment or discrimination based on sex, or discrimination, failure to prevent an act of workplace harassment or discrimination based on sex discrimination, or an act of retaliation against a person for reporting or opposing harassment or discrimination based on sex, discrimination, as described in subdivisions (a), (h), (i), (j), and (k) of Section 12940 of the Government Code.
(4)An act of harassment or discrimination based on sex, discrimination, or an act of retaliation against a person for reporting harassment or discrimination based on sex, discrimination by the owner of a housing accommodation, as described in Section 12955 of the Government Code.
(b)Notwithstanding any other law, in a civil matter described in paragraphs (1) to (4), inclusive, of subdivision (a), a court shall not enter, by stipulation or otherwise, an order that restricts the disclosure of information in a manner that conflicts with subdivision (a).
(c)Notwithstanding subdivision (a) and (b), a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her the claimants 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.
(d)Except as authorized by subdivision (c), a provision within a settlement agreement that prevents or restricts the disclosure of factual information related to the claim described in subdivision (a) that is entered into on or after January 1, 2019, is void as a matter of law and against public policy.
(e)This section does not prohibit the entry or enforcement of a provision in any agreement that precludes the disclosure of the amount paid in settlement of a claim.
(f)In determining the factual foundation of a cause of action for civil damages under subdivision (a), a court may consider the pleadings and other papers in the record, or any other findings of the court.
SEC. 2.Section 12964.5 of the Government Code is amended to read:12964.5.(a)(1)It is an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:
(1)(A)(A)(i)For an employer to require an employee to sign a release of a claim or right under this part.
(B)(ii)As used in this section, subparagraph, release of claim or right includes requiring an individual to execute a statement that he or she the individual does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.
(2)(A)(B)For an employer to require an employee to sign a nondisparagement agreement or other document that purports to deny to the extent it has the purpose or effect of denying the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. workplace.
(B)For purposes of this paragraph,information about unlawful acts in the workplace includes, but is not limited to, information pertaining to sexual harassment or any other unlawful or potentially unlawful conduct.(b)(2)Any agreement or document in violation of this section subdivision is contrary to public policy and shall be unenforceable.
(b)(1)It is an unlawful employment practice for an employer or former employer to include in any agreement related to an employees separation from employment any provision to the extent it has the purpose or effect of denying the employee or former employee the right to disclose information about unlawful acts in the workplace.
(2)Any provision in violation of paragraph (1) is against public policy and shall be unenforceable.
(c)As used in this section, information about unlawful acts in the workplace includes, but is not limited to, information pertaining to harassment or discrimination or any other unlawful or potentially unlawful conduct.
(c)(d)(1)This section 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, alternative dispute resolution forum, or through an employers internal complaint process.
(2)As used in this section, negotiated means that the agreement is voluntary, deliberate, and informed, 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.
|
Date
|
Status
|
|---|---|
| Oct 7, 2021 | Chaptered by Secretary of State. Chapter 638, Statutes of 2021. |
| Oct 7, 2021 | Approved by the Governor. |
| Sep 3, 2021 | Enrolled and presented to the Governor at 2 p.m. |
| Aug 30, 2021 | Assembly amendments concurred in. (Ayes 30. Noes 8. Page 2214.) Ordered to engrossing and enrolling. |
| Aug 26, 2021 | In Senate. Concurrence in Assembly amendments pending. |
| Aug 26, 2021 | Read third time. Passed. (Ayes 58. Noes 13. Page 2515.) Ordered to the Senate. |
| Aug 16, 2021 | Read third time and amended. |
| Jun 24, 2021 | Read second time. Ordered to third reading. |
| Jun 23, 2021 | From committee: Do pass. (Ayes 5. Noes 1.) (June 22). |
| Jun 9, 2021 | Read second time and amended. Re-referred to Com. on L. & E. |
| Jun 8, 2021 | From committee: Do pass as amended and re-refer to Com. on L. & E. (Ayes 8. Noes 3.) (June 8). |
| May 13, 2021 | Referred to Coms. on JUD. and L. & E. |
| May 6, 2021 | In Assembly. Read first time. Held at Desk. |
| May 6, 2021 | Read third time. Passed. (Ayes 29. Noes 8. Page 1036.) Ordered to the Assembly. |
| Apr 28, 2021 | Read second time. Ordered to third reading. |
| Apr 27, 2021 | Withdrawn from committee. |
| Apr 27, 2021 | May 3 hearing postponed by committee. |
| Apr 21, 2021 | Set for hearing May 3. |
| Apr 15, 2021 | Read second time and amended. Re-referred to Com. on APPR. |
| Apr 14, 2021 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 8. Noes 2. Page 775.) (April 13). |
| Mar 25, 2021 | Set for hearing April 13. |
| Mar 22, 2021 | March 23 set for first hearing canceled at the request of author. |
| Mar 11, 2021 | Set for hearing March 23. |
| Mar 3, 2021 | Referred to Coms. on JUD. and APPR. |
| Feb 22, 2021 | Art. IV. Sec. 8(a) of the Constitution dispensed with. |
| Feb 9, 2021 | From printer. May be acted upon on or after March 11. |
| Feb 8, 2021 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 30, 2021 | Unfinished Business SB331 Leyva Concurrence | Senate Floor |
Passed |
|
| Aug 26, 2021 | SB 331 Leyva Senate Third Reading By Reyes | Assembly Floor |
Passed |
|
| May 6, 2021 | Senate 3rd Reading SB331 Leyva | Senate Floor |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
Bill Author
Bill Co-Author(s):