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California’s ‘Silenced No More Act’ Explained

by | Jun 6, 2024 | Sexual Harassment


Silenced No More Act: A Watershed Moment for California Employment Law

California, a state often at the forefront of progressive workplace legislation, has taken a significant step towards empowering employees with the Silenced No More Act (SB 331). This landmark law, effective January 1, 2022, fundamentally restricts the use of confidentiality and non-disparagement agreements in the context of harassment, discrimination, and retaliation claims. This blog post delves into the key provisions of the Act, its implications for employers and employees, and the broader societal impact it represents.

Dismantling the Culture of Silence

Prior to SB 331, employers in California could leverage confidentiality agreements (also known as non-disclosure agreements or NDAs) to silence employees from disclosing details of harassment, discrimination, or retaliation experienced in the workplace. These agreements often shrouded settlements in secrecy, hindering victims from speaking out and perpetuating a culture of fear and impunity for perpetrators.

The #MeToo movement, with its powerful call for accountability, exposed the prevalence of workplace sexual harassment and the silencing tactics employed to suppress such claims. SB 331 builds upon existing limitations on NDAs in sexual harassment cases and expands these protections to encompass a wider range of unlawful acts protected by the California Fair Employment and Housing Act (FEHA). This includes:

  • Sexual assault
  • Sexual harassment
  • Sex-based discrimination
  • Discrimination based on any protected characteristic under FEHA (race, religion, disability, etc.)
  • Retaliation for reporting such incidents

By prohibiting the use of NDAs in these situations, SB 331 empowers victims to share their stories, potentially leading to investigations, disciplinary action, and systemic reforms within organizations. This transparency can also deter future misconduct and foster a safer work environment for all.

Beyond NDAs: Addressing Non-Disparagement Clauses

The Silenced No More Act also tackles the issue of non-disparagement clauses in settlement agreements and separation agreements. These clauses prevent both parties from making negative or disparaging remarks about each other. While seemingly neutral, they could potentially discourage employees from disclosing negative experiences about the company or workplace culture.

SB 331 requires that any non-disparagement clause in a separation agreement include specific language clarifying that it does not restrict the employee’s right to discuss unlawful acts in the workplace. This ensures that employees can still speak out about harassment, discrimination, or retaliation without fear of breaching the agreement.

Exceptions and Safeguards

The Act is not without its nuances. There are a few key exceptions to the limitations on NDAs and non-disparagement clauses:

  • Negotiated Settlements: SB 331 allows for NDAs in “negotiated settlements” to resolve FEHA claims that have already been filed through formal channels (court, administrative agency, etc.). However, this exception is subject to specific requirements, including ensuring the agreement is voluntary, provides valuable consideration to the employee, and grants them the opportunity to consult with legal counsel.
  • Protecting Confidential Information: The Act does not prevent employers from safeguarding legitimate business interests. Employers can still include provisions in agreements that protect trade secrets, proprietary information, or other confidential information – as long as it’s not related to unlawful acts.
  • Shielding Identity: In some cases, employees may wish to keep their identity confidential in a settlement agreement. SB 331 allows for this, provided a government agency is not a party to the agreement.

Employer Considerations and Action Steps

The Silenced No More Act necessitates adjustments in how California employers handle workplace disputes and settlements. Here are some key steps employers should take:

  • Review and Update Agreements: All existing settlement agreement and separation agreement templates must be reviewed and revised to comply with the new restrictions on NDAs and non-disparagement clauses.
  • Employee Notification: When offering a separation agreement that limits an employee’s ability to discuss workplace conditions, employers must notify the employee of their right to consult with an attorney and provide them with at least five business days to consider the agreement.
  • Training and Education: Educate managers and HR personnel on the implications of SB 331 to ensure consistent and compliant application throughout the organization.

A Ripple Effect: Beyond California

The Silenced No More Act is a significant development with potential national implications. It reflects a growing movement towards greater employee transparency and accountability in the workplace. Other states may very well consider similar legislation, prompting a broader shift in how workplace misconduct is addressed.

Conclusion: A More Equitable Workplace

The Silenced No More Act represents a critical step towards a more just and equitable workplace environment in California. By empowering employees to speak out about harassment, discrimination, and retaliation, the Act fosters transparency, discourages misconduct, and paves the way for systemic change. 

The #MeToo movement has undeniably reshaped conversations around sexual harassment and discrimination in the workplace. In its wake, California has taken a significant step towards greater transparency with the enactment of Senate Bill 331, also known as the Silenced No More Act. This legislation, effective January 1, 2022, fundamentally alters the landscape of settlement and separation agreements within the state.

This blog post delves into the key provisions of the Silenced No More Act, its implications for employers and employees, and the broader societal impact it signifies.

Lifting the Veil: Restrictions on Confidentiality and Non-Disparagement Clauses

Prior to SB 331, California law already prohibited settlement agreements from including clauses that silenced victims of sexual assault, sexual harassment, or sex discrimination. The Silenced No More Act significantly expands these protections. Now, settlement agreements for all claims of harassment, discrimination, or retaliation under the California Fair Employment and Housing Act (FEHA) cannot restrict the disclosure of factual information related to those claims.

This means employees can freely discuss details surrounding the incident(s) that led to the settlement, potentially empowering others who may have experienced similar issues within the organization. The ability to share their stories can embolden others to come forward and hold employers accountable for fostering a hostile work environment.

The Act also takes aim at non-disparagement clauses within separation agreements. These clauses, previously used to prevent negative comments about the employer, can now only be included if they explicitly state that the employee retains the right to disclose information about unlawful acts in the workplace. This ensures transparency and protects employees from being muzzled about potential wrongdoing.

Exceptions and Safeguards: Balancing Transparency with Fairness

While the Silenced No More Act prioritizes openness, it acknowledges certain situations where confidentiality might still be warranted. For instance, the Act allows negotiated settlements to resolve existing FEHA claims filed in court, before an administrative agency, or through alternative dispute resolution forums, to include non-disclosure provisions. This exception hinges on the agreement being voluntary, offering fair compensation to the employee, and ensuring they have legal representation or the opportunity to consult an attorney.

Furthermore, the Act carves out exemptions for protecting legitimate business interests. Employers can still maintain confidentiality regarding settlement amounts, trade secrets, and other proprietary information unrelated to unlawful workplace conduct. Additionally, settlements can include provisions to shield the claimant’s identity upon their request.

A New Era for California Workplaces: Implications and Impact

The Silenced No More Act has far-reaching consequences for California employers and employees alike.

For Employers:

  • Review and Revise Agreements: Employers must revisit their standard settlement and separation agreement templates to ensure compliance with the Act’s restrictions on confidentiality and non-disparagement clauses.
  • Transparency in Negotiations: Negotiation processes for settlements and separations will likely require a more open approach, with a focus on addressing the underlying issues that led to the complaint.
  • Potential for Increased Litigation: The Act’s emphasis on transparency might lead to more employees feeling empowered to come forward with claims, potentially increasing litigation risk for employers with a history of harassment or discrimination.

For Employees:

  • Empowerment to Speak Up: Employees who experience harassment or discrimination are now free to share their stories without fear of violating a confidentiality clause. This can be crucial for exposing and addressing systemic issues within organizations.
  • Informed Decision-Making: With greater access to information about workplace misconduct, employees considering a settlement or separation agreement can make more informed decisions about the terms.

A Beacon for Change: The National Landscape

California’s Silenced No More Act serves as a national precedent, potentially paving the way for similar legislation across the country. The Act’s emphasis on transparency and employee empowerment aligns with the growing societal demand for accountability and a more just workplace environment.

This shift reflects a growing recognition of the harm caused by silencing victims of harassment and discrimination. Openness allows for a more thorough investigation of potential wrongdoing, fostering a culture where employees feel safe to report misconduct without fear of retaliation.

The Silenced No More Act is a significant step towards a more equitable and transparent workplace landscape in California. As other states potentially follow suit, the national conversation surrounding harassment and discrimination may well take a decisive turn towards greater accountability and employee empowerment.