California Senate Bill 331 – “Silenced No More Act”

Smith Gambrell Russell

On October 7, 2021, Governor Newsom signed Senate Bill 331, which will become law on January 1, 2022. Dubbed the “Silenced No More Act,” the new law effectively will eliminate an employer’s ability to prevent disclosure of factual information related to claims of discrimination and harassment in the workplace, regardless of the actual merit of those claims.

Effective January 1, 2019, California Code of Civil Procedure § 1001 was amended to prohibit settlement agreement provisions limiting factual disclosures about claims of workplace harassment and discrimination based on gender. The new legislation further amends Code of Civil Procedure § 1001 to prohibit a settlement agreement provision that would prevent or restrict the disclosure of factual information related to a claim of harassment or discrimination of any sort. The new legislation also amended Government Code § 12964.5 to make it an unlawful employment practice for an employer to require, whether in exchange for a raise or bonus, or as a condition of commencing or continuing employment, or as part of a separation agreement, a document that has the effect of denying an employee the right to disclose “information about unlawful acts in the workplace.” If a document covered by Government Code § 12964.5 includes a non-disparagement provision, then it also must include 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.” Any provision that violates Code of Civil Procedure § 1001 or Government Code § 12964.5 is deemed void as against public policy and unenforceable.

The new legislation means that it will be impossible for employers to prevent employees from disclosing factual information related to what the employee believes are acts of discrimination or harassment, regardless of the actual merit of the claims, and regardless of whether an employer in good faith wishes to resolve those claims as meritless rather than litigate them. Advocates of the new legislation point to the importance of disclosure as a way to ensure that unlawful practices are dealt with properly. Opponents of the legislation raise concerns that the inability of employers to put to rest claims that in good faith are seen as meritless may now prefer to take such claims all the way through trial in order to obtain vindication.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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