This guest post is brought to you by Rachel Cohen, Esq.  She is a partner with Gale, Sutow & Associates and is in their Cypress Office.  Aside from practicing in the field of workers’ compensation law for more than 20 years Rachel enjoys all things aquatic and is a huge fan of SciFi.  Rachel can often be found pondering such questions as: Did Han shoot first?;  How is “42” the answer to the question “what is the meaning of life?”; and What does “Wibbly Wobbly Timey Wimey” actually entail?  

Happy Monday, Blog Readers! With the recall behind us and New Year rapidly approaching we have seen a host of bills signed into law by Governor Newsome.  Among them is Senate Bill 331 which we should all take a look at as the holiday rush to settlement is among us.

SB 331 AKA The Silence No More Act has been signed and is now the law of the land.  This act expands the host of “Me Too” legislation signed over the past year or so, adding to the list of provisions of settlement documents which would be considered against public policy and unenforceable.

In Short SB 331 amends California Code of Civil Procedure section 1001 and Government Code section 12964.5 to render unenforceable any provisions within settlement agreement that would prevent or restrict the disclosure of factual information regarding specified acts related to a claim filed in a civil action or administrative action related to harassment, discrimination or retaliation of any kind.  This acts as an expansion of the prior rules which were limited to sex related claims.  As of January 1, 2022, SB 331 now extends this prohibition to other acts of workplace harassment or discrimination not just those based on sex. 

You can see how easily this could dovetail with Workers’ Compensation Claims given the types of allegations we frequently see when litigating psyche claims (work place harassment of all flavors), 132(a) wrongful termination claims, etc.

Oftentimes, when settling a claim by way of Compromise and Release, an addendum is attached which will seek agreement of the injured worker to keep confidential the terms of the settlement.  Entering 2022 we will all need to review any confidentiality agreements we have as part of those addenda to ensure that we do not run afoul of SB 331. While non-disclosure agreements and confidentiality clauses in workers’ compensation have little teeth and Judges are often loathe to enforce those clauses even when they are allowed, we will now need to be certain that such provisions do not prevent an injured worker from discussing information about unlawful acts in the workplace.   This does not apply to items such as amount of settlement or things such as trade secrets. 

This may get trickier when an employee separates from employment concurrently with any settlement.  Where there is a separation agreement and settlement injured workers cannot be prohibited from discussing the unlawful acts noted herein but a provision specifically stating “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” must be included.

As we approach the New Year I would encourage all to speak with their colleagues, clients and insureds to identify your approach to the inclusion or removal of such confidentiality or non-disclosure agreements.