California prohibits Settlement Agreements from preventing the disclosure of facts about Sexual Harassment, and adds Sexual Harassment Training requirements for Employers 

Many settlement agreements, including those between workers and their employers (or former employers), contain “release of claims,” “non-disclosure,” or “non-disparagement” language.  These types of settlement agreements essentially force employees, as a condition of the settlement, to release legal claims or to keep quiet about the claims he/she is settling. 

For Californians, three recently-signed bills will restrict this type of language in settlement agreements with respect to sexual harassment.  In other words, settlement language that would prevent parties from discussing facts or information about sexual harassment will be unenforceable. 

Further, the state passed a fourth bill requiring additional training of non-supervisory employees—in addition to supervisory employees—on sexual harassment. 

1. Senate Bill 820 (SB 820)

As of January 1, 2019 in California, SB 820 will void settlement agreement provisions if they prevent individuals from disclosing facts of underlying claims of sexual assault, harassment or discrimination based on sex.  In addition, the law will also prohibit “non-disclosure” agreements from preventing the disclosure of such facts. 

A claimant may still request to shield his/her identity, or facts which may lead to the discovery of his/her identity, from being disclosed in a settlement agreement.  However, this exception is not applicable if a party to the settlement is a government agency or public official.

2. Senate Bill 1300 (SB 1300)

Under SB 1300, California employers cannot require employees to sign—as a condition of employment—a “non-disparagement” agreement preventing the employee from disclosing sexual harassment occurring in the workplace, or to waive the right to bring a claim for discrimination or harassment. 

Specifically, starting January 1, 2019, it will be unlawful for an employer in California to require an employee to do any one of the following in exchange for a raise or bonus, or as a condition of employment or continued employment:

  • Sign a “non-disparagement” agreement that denies him/her the right to disclose information about unlawful acts in the workplace, including sexual harassment; or
  • Sign a release of the right to file and pursue a claim under the Fair Employment and Housing Act (FEHA).

Agreements that violate either of these two criteria will be found unenforceable.

Under FEHA, it is unlawful for an employer, labor organization, employment agency, apprenticeship training program, or any training program, to engage in harassment of an employee or other specified person. 

Currently, these entities may also be responsible for the acts of non-employees, with respect to sexual harassment of employees, if the employer (labor organization, employment agency, apprenticeship training program, or training program) knows or should have known about the harassment and fails to take action. 

SB 1300 expands FEHA by specifying that an employer (labor organization, employment agency, apprenticeship training program, or training program) may be responsible for the acts of non-employees relating to other harassment activity, not only sexual harassment. 

3. Assembly Bill 3109 (AB 3109)

Settlement agreements in California can no longer prevent one party to the agreement from testifying regarding sexual harassment done by the other party to the agreement. 

Beginning on or after January 1, 2019, settlement agreement terms cannot waive a party’s right to testify before a court, administrative agency, or legislative body regarding: alleged criminal conduct or sexual harassment perpetrated by the other party to the settlement agreement (or that other party’s agents or employees).

4. Senate Bill 1343 (SB 1343)

Previously, the FEHA required employers with 50 or more employees to provide training to supervisors regarding sexual harassment every two (2) years.   SB 1343 expands this requirement.

With the passage of this bill, all employers with at least 5 or more employees, including seasonal and temporary employees, must provide sexual harassment training to all supervisors.

In addition, employers with at least 5 or more employees must also provide one (1) hour of sexual harassment training to all non-supervisory employees, no later than January 1, 2020, and every two years thereafter.

Please contact your local labor law counsel to discuss the impacts of these new laws on your workplace or the workplace of employees you represent. 

By Caroline Cohen | October 26, 2018

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