12 Defense Comment Summer 2019 includes. But, as noted below, other statutory limitations now exist with regard to non-disclosure and confidentiality provisionsinsettlementsofpost-complaint sexual harassment, discrimination, and retaliation claims. Parties Cannot Require That “Factual Information” About a Sexual Harassment, Discrimination, or Retaliation Settlement Be Kept Confidential SB 820, or the Stand Together Against Non-Disclosures (“STAND”) Act, was sparked by Harvey Weinstein’s practice of using confidentiality provisions to keep his predatory behavior a secret.6 The STAND Act enacted California Code of Civil Procedure section 1001, which provides that nondisclosure or confidentiality provisions in a settlement agreement entered into after January 1, 2019 are void as a matter of law and public policy wheretheprovisionpreventsthedisclosure of factual information related to any of the following: • sexual assault; • sexual harassment; • workplace sexual harassment or discrimination on the basis of sex; • failure to prevent workplace harassment or discrimination on the basis of sex; or • retaliation for reporting sexual harassment or discrimination in the workplace.7 SB 820 contains two exceptions (1) If the claimant requests it, and provided that neither party is a government agency or public official, the parties may include a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including pleadings filed in court; and (2) the “amount paid” to resolve any claim may still be kept confidential.8 Note that these requirements only apply if the employee has actually taken formal action by filing a lawsuit or an administrative complaint. If the matter has been addressed informally only, such as by an internal complaint filed by an employee at the workplace, or if the employee has merely sent a demand letter but has not filed suit – then a settlement agreement entered into by the parties to resolve the matter may still contain standard confidentiality provisions, to the extent allowed by California Government Code section 12964.5, discussed above. It remains to be seen how the courts will treat settlement agreements of mixed sexual harassment and non-sexual harassment related claims. It is also unclearhowthecourtwilltreatseverability provisions, and if it will allow provisions in violation of this section to be severed from the agreement, of if the entire agreement is void as a matter of law. Forward Thinking: Prevention and Compliance California employers should be advised to adapt to this post-#MeToo landscape by: training management and human resources personnel on the new requirements; conducting a comprehensive review of employee handbooks, form settlement agreements, releases, employment contracts, and related employee documentation; implementing any necessary language changes; and, as always, ensuring that sexual harassment training (which by January 1, 2020, all employers having five or more employees must provide to supervisors and employees) is complete and up to date. Preparation and prevention are critical factors for employers in minimizing risk and maintaining a compliant workplace. Endnotes 1 The Legislature affirmed its approval of Harris v. Forklift Systems (1993) 510 U.S. 17, 26 (“plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.”); and Reid v. Google, Inc. (2010) 50 Cal.4th 512 (the existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or if uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination). The Legislature rejected Kelley v. Conco Companies (2011) 196 Cal.App.4th 191 (providing that sexual harassment is not defined differently workplace to workplace). 2 Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917. This opinion may no longer be used in determining what conduct is sufficiently severe or pervasive to constitute a violation of FEHA. 3 Gov. Code, § 12964.5(a)(1). 4 Id., at § 12964.5(a)(2)(A). 5 “‘Negotiated’ means that the agreement is voluntary, deliberate, and informed, provides consideration of value to the employee, and that the employee is given notice and an opportunity to retain an attorney or is represented by an attorney.” Gov. Code, § 12964.5(c)(2). 6 Thisbillexpandeduponpriorlawprohibiting the settlement agreement provisions that prevent the disclosure of factual information related to claims involving certain types of sexual conduct, including childhood sexual abuse and any act that may be prosecuted as afelonysexoffense. (ConfidentialSettlement Agreements: Sexual Offenses: Hearing on A.B. 1682 Before the Assembly Comm. on Judiciary, 2015-2016 Leg., Reg. Sess. 6 (Cal. 2016).) 7 Code Civ. Proc., § 1001(a). SB 820 also precludes courts from entering orders that restrict the disclosure of such facts. Id., at §1001(b). 8 Id., at § 1001(c). Laura C. McHugh Laura McHugh is chair of the ADCNCN’s employment law committee, and a share holder in Duggan Law Corporation. Shedefendsand counselsemployersofallsizes inlaborandemploymentlaw matters. In 2017 and 2018, Laura received recognition by Lawyers of Distinction as being in the top 10% of labor and employment lawyers in the country. #MeToo – continued from page 11