Policy Summary: On February 8, 2021 California State Senator Connie Leyva (D-Chino) introduced Senate Bill (SB) 331, popularly known as the Silenced No More Act. The bill is intended to supplement the Stand Together Against Non – Disclosures (STAND) Act which was also introduced by State Senator Leyva and which was signed into law in California in 2018.
The 2018 STAND Act banned the use of secret settlements and non – disclosure agreements (NDA) in cases of sexual misconduct in both the private and public workplace in California. The STAND Act applied only to sexual misconduct incidents and includes sexual assault and sexual harassment. The 2021 Silenced No More Act goes further and extends the ban of the use of secret settlements and NDAs to all protected categories of discrimination as well as incidents of harassment. This bill would now prevent employers, as part of a settlement of legal claims, from requiring an employee to sign a non – disclosure or confidentiality agreement if the employee is the victim of discrimination on the basis of race, ethnicity, sexual orientation, age, disability and religion while at work. The bill is scheduled to be analyzed in a state senate committee in mid – March and after passage in committee and likely passage in the state senate the bill will be sent to the CA Assembly. Due to the popularity of the 2018 STAND Act, Governor Newsom is expected to sign the bill into law but not until early Fall 2021 at the earliest. LEARN MORE, LEARN MORE
Policy Analysis: The 2018 bill introduced by State Senator Leyva was partly due to the #MeToo movement that erupted in 2017. Far too often, powerful men who had been accused of sexual misconduct used secret settlements and NDAs to prevent their accusers from speaking about the facts underlying their accusations. Hollywood producer Harvey Weinstein used NDAs to keep his predatory sexual behavior from becoming public and to protect his career all while continuing to engage in the same predatory sexual behavior against other women. And, the tactic of silencing women from revealing what happened was even used by President Donald Trump to protect him from the accusations of a number of women even before his election in 2016. Women who broke these agreements would often be sued which created a chilling effect for women who wanted to speak out on their experiences and try to help other women who found themselves in a similar position.
But the tactic of using NDAs was not used only for sexual misconduct cases. The STAND Act introduced by State Senator Leyva expands the law by banning NDA’s in instances of discrimination and harassment. Too many times, employees who had suffered harassment or discrimination based on one of the protected categories had to sign an NDA when the case was settled. That led to the same problem that emerged in the use of NDAs in sexual misconduct cases – that the employer would not be punished for the initial behavior and could continue with the offensive behavior. Additionally, the victim would be vulnerable to being sued for violating the NDA or confidentiality agreement by merely speaking out. State Senator Leyva’s bill seeks to include harassment and discrimination as a category that cannot use NDA’s to silence victims. As with the 2018 STAND Act, the expansion of that law with SB 331 to include workplace harassment and discrimination is a critical component to help prevent workers from being silenced and encourage them to speak out on unacceptable conduct. And, it encourages accountability of behavior of powerful employers who preyed on women, which had been going on in the workplace unchecked for far too long. LEARN MORE, LEARN MORE
Engagement Resources:
Workplace Fairness – workers rights organization’s infopage on NDA’s.
Harvard Business Review – article in respected business journal advocating for change in use of NDA’s.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.