©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 355 13.4.4 Restrictions on limitations on testimony No provision in a California “contract or settlement agreement” can waive a party’s right to testify in a legal proceeding about “alleged criminal conduct or alleged sexual harassment” perpetrated by the other contracting party or its agents or employees where the party has been required or requested to attend the proceeding by a court order, a subpoena, or a written legislative or administrative request.33 (See §§ 6.5.13, 20.1.) 13.4.5 Limitations on non-disclosure provisions in sexual harassment settlements No provision in a California agreement to settle a legal complaint can prohibit disclosure of “factual information” related to a claim filed in that proceeding if the information is “regarding” (1) sexual assault, (2) sexual harassment, (3) workplace harassment or discrimination, (4) failure to prevent discrimination or harassment in the workplace, or (5) retaliation for reporting or opposing harassment or discrimination in the workplace.34 The “amount paid” to resolve any complaint may still be kept confidential.35 The law is silent on keeping non-monetary settlement terms confidential. Unless a government agency or “public official” is a party, it is permissible to prevent the disclosure of “all facts” regarding alleged sexual harassment or discrimination that would lead to the discovery of the claimant’s identity (including court filings), if the claimant requests confidentiality.36 13.4.6 Limitations on no-rehire provisions Agreements to settle employment disputes in California cannot prohibit, prevent, or otherwise restrict an aggrieved settling party from obtaining future employment with the employer complained against, or with that employer’s parent company, subsidiary, division, affiliate, or contractor. The parties may, nevertheless, enter into an agreement to end a current employment relationship.37 (See § 12.3.) The restriction also does not apply if the employer has made and documented a good faith determination, before the aggrieved person filed the claim, that the aggrieved person engaged in sexual harassment, sexual assault, or any criminal conduct. And an employer need not employ or rehire any individual if the employer has a legitimate non-discriminatory or non-retaliatory reason to terminate the employment relationship or deny rehire to that individual.38 13.4.7 Separation agreements Separation agreements requiring a second release after a period of continued employment (including leave) can be problematic, because California employers must not require employees—either as a condition of employment, or in exchange for a raise or bonus, or as a condition of continuing employment—to agree to any of the following: A statement that the employee has no FEHA claim against the employer. A release of the right to pursue a FEHA claim or to notify a governmental entity of the claim. An agreement (such as a nondisparagment clause) not to disclose” information related to conditions in the workplace.39 As amended by SB 331, effective January 1, 2022, nondisparagment clauses and similar contractual provisions must include (in substantial form): “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.”40. Information about unlawful acts in the workplace is broadly defined to include information pertaining to harassment or discrimination or any other conduct that the employee has reasonable cause to believe is unlawful.41
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