Limits to Confidentiality of Sexual Harassment Claims in Settlement Agreements

California Governor Jerry Brown recently signed Senate Bill No. 820, enacted as California Code of Civil Procedure Section 1001, which places new restrictions on confidentiality provisions in settlement agreements involving sexual harassment/discrimination claims. Specifically, Section 1001 precludes provisions in a settlement agreement that prevent disclosure of information related to a claim pertaining to sexual assault, harassment or discrimination based on sex, or retaliation for reporting harassment or discrimination based on sex.

For settlement agreements entered into on or after January 1, 2019, Section 1001 renders a prohibited confidentiality provision under the new law void. The new law does not bar provisions that forbid the disclosure of a settlement payment amount, and does contain an  exception: the law does not prevent a confidentiality provision that excludes the identity of the claimant, and all facts that could lead to the discovery of his or her identity, if the provision is included within the settlement agreement at the request of the claimant.   

Increase in Sexual Harassment Prevention Training Requirements

The California Legislature also recently amended Cal. Gov’t. Code Section 12950.1. California law previously required employers with 50 or more employees to provide supervisory personnel with sexual harassment prevention training. The revised section applies to both supervisory and nonsupervisory personnel and reduces the minimum number of employees to five. By January 1, 2020, an employer with five or more employees must provide at least two hours of interactive training regarding sexual harassment prevention to all supervisory employees and at least one hour of training to all nonsupervisory employees.

Employees are required to undergo this antiharassment training within six months of being hired and the training must be repeated every two years. An employer may develop its own training module or may utilize the online training course developed by the California Department of Fair Employment and Housing.

Takeaways

If your company has employees in California, be sure to take steps to comply with the new sexual harassment prevention training requirements and avoid the prohibited confidentiality provisions in settlement agreements going forward.  If in doubt, consult with experienced legal counsel to determine whether these new laws have any impact on your current employment practices.

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