What does California’s “Silenced No More” Act SB-331 Mean for Household Employment?

In October of 2021, California Governor Gavin Newsom signed Senator Connie Leyva’s Senate Bill 331, and on January 1, 2022, the new law went into effect.

SB-331 builds on the 2018 STAND Act (Stand Together Against Non-Disclosure Act), which allowed the disclosure of sexual harassment and assault, as part of the #MeToo movement.

The new law, SB-331 (Silenced No More), means that you can’t ask your employee to stay quiet about workplace harassment or discrimination on any protected basis, not just sex. You also can’t prevent your employee or former employee from talking about any retaliatory behaviors on your part.

Avoid illegal behaviors towards your employee

Put simply, your NDA can’t cover illegal behaviors. If you break the law in the way you treat your employee, then your employee has the right to talk about it, even to a lawyer, a judge, or any law enforcement official. You can’t offer a settlement that takes away this right.

Public policy aside, it is your responsibility as a household employer to make sure your household staff members feel safe in your home.

At Nines, we strongly believe household employers should treat their employees with respect — and shouldn’t expect them to stay silent when mistreated. Use of non-disclosure agreements can protect your family, but not at your employees’ expense. Employment agreements should protect both sides, and you should never expect to avoid employment law and explicit protections for your household employees. The Silenced No More act gives your employee protections under California law, but also encourages ethical behavior throughout their employment in your household. If you treat your employees well, this law will never apply to you, and it won’t hinder your NDA.

What is no longer protected?

The law specifically covers settlement agreements. If you have an employment dispute with your employee, you might offer a settlement. But that settlement agreement can’t require confidentiality about specific illegal things you have allegedly done in relation to a civil action or administrative complaint.

This includes allegations of sexual assault and sexual harassment, but it also includes workplace harassment or discrimination claims on any protected basis, like sexual orientation or gender discrimination, as well as any form of retaliation.

Types of protected basis include race, religion, color, national origin, ancestry, disability, medical condition, familial status, gender, age, and more.

What is still protected by NDAs?

The only thing explicitly not covered as a result of this law is illegal behavior toward your employee. Your NDA can still protect:

• Trade secrets
• Proprietary information
• Confidential information about your family, household, finances, health, beliefs, activities, or requirements

As long as those things don’t involve unlawful acts in the workplace, your NDA can still cover them.

Other NDA updates in SB-331

It is your employee’s right to talk to an attorney, even if they have an NDA. Legal representation is a basic right, and it would be wrong to take it away; plus, it’s the law. If you offer separation agreements, severance agreements or settlement agreements, you have to explicitly tell your employee that they can consult with a lawyer before they decide whether they’ll accept the offer.

Give your employee five business days to consider your offer. She can reply sooner if she wants to — as long as you didn’t pressure or trick her in any way.

If you use a non-disparagement clause in your work agreement, or if you offer one in a settlement, add this language: “Nothing in this non-disparagement 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.”

The best way to avoid California’s Silenced No More Act is to treat your employees with respect

Of course, you should never harass, discriminate, assault, or retaliate against your employees for any reason. If there ever is such an allegation, don’t ask your employee to keep it a secret. Be proactive and ensure an employee knows what to do if they have a workplace harassment or discrimination claim. They deserve to feel like they can trust their employer’s internal complaint process — even if they work in your home, rather than a corporate environment. But preventing these allegations in the first place is the best way to keep the Silenced No More Act from affecting your life, and your employees’ lives.