On January 1, 2022, SB 331, known as the Silenced No More Act, becomes effective throughout California. The Silenced No More Act empowers survivors of harassment and discrimination and seeks to curtail future abuses by perpetrators in the workplace. Building on 2018’s STAND Act (SB 820), the Silenced No More Act also critically expands the prohibition on overly broad confidentiality and non-disparagement clauses in employment agreements to cover workers who are required to agree to these provisions as part of a severance agreement.

The Silenced No More Act clarifies and expands existing law by exempting all forms of discrimination made unlawful under the Fair Employment & Housing Act from California settlement agreements and severance agreements.

The Silenced No More Act further expands existing law by exempting all unlawful acts under FEHA from non-disparagement agreement coverage in settlement agreements, severance agreements, or required in exchange for a raise, bonus, or as a condition of employment or continued employment. Further, any non-disparagement provision restricting a California employee’s ability to discuss workplace conditions shall include the following disclaimer: “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 agreement in violation of the Silenced No More Act’s non-disparagement provision is unenforceable. However, lawful and valid general releases and waivers of all claims in separation agreements remain enforceable.

Where the employer offers a settlement agreement or separation agreement containing a non-disparagement provision, must also notify the employee that they have the right to consult an attorney regarding the proposed agreement. Further, the employer must allow the employee at least five business days to consult with an attorney. An employee can waive this grace period where the decision to shorten the time is knowing and voluntary and is not induced by the employer through fraud, misrepresentation, or a threat to withdraw or alter the offer prior to the deadline. Similarly, the employer may not provide differing agreements to those signing before the deadline discussed above.

Please note that, the Silenced No More Act’s amendments, codified at California Code of Civil Procedure section 1001(a)(3) only applies to settlement agreements and severance agreements entered into on or after January 1, 2022.

The Silenced No More Act ensures California workers can never be forced to sign away their right to speak about workplace harassment or discrimination as a condition of employment or after seeking justice.

The Silenced No More Act also protects California Tenants. Click here to read more.