It’s not clear who originally said, “As goes California, so goes the rest of the nation…”
For many years, it’s been taken as an article of political and cultural faith. It’s true that many trends that started in California worked their way across the rest of the country. As to whether that maxim still rings today is up for debate.
Which brings us to California’s Silenced No More Act, otherwise known as SB 331.
Governor Gavin Newsom signed SB 331 into law. It takes effect 2022. SB 331 builds on another California law, call the STAND Act.
The STAND Act stands for Stand Together Against Non-Disclosure”. The acronym and its full meaning almost have fractal qualities.
The STAND Act prohibited preventing the disclosure of factual information relating to claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, filed in a civil or administrative action. Such provisions, if included in settlement agreements, are void as a matter of law and against public policy.
SB 331 prohibits non-disclosure provisions in settlement agreements for all workplace discrimination or harassment, not only based on sex. This includes discrimination and harassment based on race, religion, disability, and other protected characteristics described in the Fair Employment and Housing Act. However, a provision to protect the identity of the claimant may be included in the settlement agreement at the request of the claimant.
So, these laws take aim at select non-disclosure or non-disparagement agreements. The laws also prevent employers from pushing employees to sign such agreements as a condition of employment if they “purport to dent the employee’s right to disclose unlawful acts in the workplace.”
By itself, this does not seem to be a particularly challenging term. Employees already had whistleblower and anti-retaliatory protections if they disclosed unlawful acts. The only caveat was such “disclosers” had to follow a protocol – generally running their findings up the flagpole internally before going to the media.
Also, under the new law, employers CAN add non-disparagement provisions related to conditions in the workplace as long as the following carve out is included in the agreement.
“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.”
If employers and employees do come to a negotiated settlement, the dollars paid CAN remain confidential.
One large law firm summarized the likely effect of the new law(s).
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…
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.
“As goes California, so goes the rest of the nation…” Will this apply to the STAND Act and SB 331?
Time will tell.
What do you think?