Return to work procedures and vaccine mandates have consumed much of Human Resources’ attention over the past year. However, there are other areas of the law that employers should continue to monitor. For example, California recently passed Senate Bill 331 (“SB 331”) which limits an employer’s ability to use non-disparagement, non-disclosure, and confidentiality agreements. Specifically, SB 331 prohibits an employer from using language in a settlement agreement which prevents or restricts an employee’s ability to disclose facts in a lawsuit regarding:
- An act of sexual assault;
- An act of sexual harassment; or,
- Generally, acts of workplace harassment, discrimination, or retaliation.
SB 331 also makes it unlawful for an employer to include a provision in a separation agreement which prohibits an employee from disclosing information about unlawful acts in the workplace. Unlawful acts in the workplace are defined broadly as “information pertaining to harassment or discrimination or any other conduct that the employee has reasonable cause to believe is unlawful.”
Of course, SB 331 only applies to employers in California. However, it serves as a good reminder for employers to review their separation agreements and goals of those agreements. For example, some employers may include a non-disparagement provision in their separation agreements that – while legally enforceable – has never been enforced. If this is the case, an employer might consider changing or deleting this language as it is superfluous. As another example, some employers may actually include a mutually enforceable non-disparagement provision which, in practice, will be invoked by the former employee much more often than by the employer. Again, an employer may want to revise this language.