The 12 Days of California Labor & Employment Series – Day 9 "Confidentiality No More When It Comes to Harassment Settlements"

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2019. In the spirit of the season, we are using the next "12 days of the holidays" to blog about one California law a day and that law's impact on California employers. On the ninth day of Christmas, my Labor and Employment attorney gave to me—nine drummers drumming and SB 820.

As discussed in prior posts, the #MeToo movement led to numerous bills involving harassment and other similar issues. Another #MeToo enacted law is SB 820. This law prohibits any provision in a settlement agreement that prevents the disclosure of factual information relating to certain enumerated sexual offenses. Any type of such provision would be void as of January 1, 2019. Thus, if an employer is settling a litigated sexual harassment or similar type claim, the employer cannot require confidentiality of the details of the claim in exchange to settle the claim.

However, SB 820 does come with a few exceptions:

1.  The amount of the agreement can be deemed confidential if agreed to by the parties;
2.  The claimant/plaintiff is allowed to request confidentiality of his/her own identity as long as no governmental agency or public official is a party to the agreement; and
3. This law does not affect settlement agreements entered into pre-litigation.

It is important and prudent for any employer to take any claim of sexual harassment, sexual discrimination, sexual assault or retaliation very seriously. It is recommended that an immediate investigation be completed.  If settlement is being considered, SB 820 should be considered to ensure compliance.