California Employers to Stop Using Certain NDAs in Employment, Separation, and Settlement Agreements

Starting January 1, 2022, employers in California became more limited in requiring non-disclosure ("NDA") and nondisparagement ("NDP") from employees.  According to the recent "Silence No More Act," the prohibition against certain NDA and NDP provisions will broaden.

The previous law prohibited non-disclosure provisions in settlement agreements in sexual harassment, sexual assault, and sex-based discrimination lawsuits and administrative actions.
The Silence No More Act has expanded the existing prohibition to include acts of workplace harassment or discrimination not based on sex.  The Act prohibits NDAs and NDPs if they have the purpose or effect of denying the employee the right to disclose information about unlawful acts.  Moreover, the separation agreements also cannot contain any NDAs or NDPs that prohibit the disclosure of information about unlawful acts in the workplace. 

The Act also requires that NDAs and NDPs related to conditions in the workplace include a specified notice regarding the employee’s right to disclose information about unlawful acts in the workplace.

Employers should review their practices and NDAs with employees. 

References:  Cal. Code. Civ. Proc. Sec. 1001, Section 12964.5 of the Government Code.
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