Before the January 1, 2022 effective date of Senate Bill 331, known as the “Silenced No More Act,” California limited the use of non-disclosure and confidentiality provisions in connection with settlement agreements and employee claims involving sexual harassment, sexual assault, and/or workplace harassment or discrimination based on sex.

Senate Bill 331 expands this limitation to include all discrimination and harassment, not just that based on sex. It also requires that employment-related non-disclosure provisions include specific language related to an employee’s right to disclose information:

“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.” 

Employers relying on non-disclosure agreements (NDAs) or severance/release agreements that have not been reviewed in consideration of SB 331, should be cognizant of the new law and its requirements and have their agreements reviewed by competent employment counsel. 

Employees and former employees must be given at least five business days to consider signing an agreement containing these types of provisions, regardless of the employee’s age. An employee may sign an agreement in less time; however, it must be on a knowing and voluntary basis and cannot be the result of fraud, misrepresentation, or coercion. An employer must also notify the employee (or former employee) to whom the employer offers a severance agreement that the employee has the right to consult an attorney regarding the agreement.

If you have questions regarding Non-Disparagement Agreements, Non-Disclosure Agreements, or Settlement/Release Agreements for your employees, please contact Kennedy McCarthy Rumm, LLP for assistance.

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