California

The Silenced No More Act (SB331) expands existing law on the use of NDAs in settlement agreements to apply to all claims of workplace discrimination, harassment, or retaliation, in addition to sexual harassment or abuse. NDAs cannot include language restricting or preventing the disclosure of factual information concerning the underlying allegations or claims, but claimants may request a provision that shields the claimant’s identity and any facts that could lead to the discovery of their identity (unless a government official or agency is party to the agreement).

A non-disparagement or other contractual provision restricting an employee’s ability to disclose information related to conditions in the workplace must include this 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.” Cal. Gov’t Code § 12964.5, as amended, effective January 1, 2022.

Amendments to the California Fair Employment and Housing Act (FEHA) prohibit employers from requiring an employee to sign, as a condition of employment or continued employment, or in exchange for a raise or a bonus, a release of a claim or a right, a non-disparagement agreement, or other document that prevents the employee from disclosing information about unlawful acts in the workplace, including sexual harassment. The law clarifies that these provisions do not apply to NDAs or releases in settlement agreements that are voluntary, deliberate, and informed, and provide consideration of value to the employee, and where the employee was given notice and opportunity to retain an attorney or was represented by an attorney. CA Govt Code § 12964.5 (2018).