With the advent of the “Me Too” movement, more women are speaking up about the situations they face both inside and outside the workplace. The media has shared details on many cases where a woman or a man has faced sexual or other forms of harassment and abuse in the workplace.

For many years, people stayed quiet about the harassment they experienced. They accepted the abusive, controlling behavior and never spoke up. As more people speak out, one area that must be considered is the use of gag orders and nondisclosure agreements (NDAs) to keep people silent. If you file a harassment claim, can your employer force you to stay silent about the settlement offer or court-ordered damages?

The Differences Between NDAs and Gag Orders

When you file a complaint against your employer for harassment, there’s a chance your employer will try to add a gag order or NDA. 

Gag Orders: Specific clauses preventing you from discussing the details or facts of the case. For example, a clause might forbid you from talking to the press after a settlement offer is agreed upon.

NDAs: General agreements that prevent you from sharing any confidential information. Often, gag orders are part of an NDA. For example, the agreement in a settlement offer requires you to remain silent and never tell anyone.

Introducing the STAND Act and the Silenced No More Act

Two California laws protect workers from NDAs and gag orders in certain situations. 

1. The STAND Act (SB 820)

California enacted the Stand Together Against Non-Disclosure (STAND) Act in 2018. It aimed to stop silencing the resolutions involving abuse, discrimination, and harassment cases. SB 820 ended the use of secretive settlements to keep workers from revealing that they were sexually harassed or discriminated against.

When an actress filed a complaint of sexual harassment against her co-star on a popular TV show, CBS paid her $9.5 million, but she had to sign an agreement promising to stay silent after her termination. In that case, which goes back to 2017, she had to agree to stay silent. It’s cases like that that led to the STAND Act.

2. The Silenced No More Act (SB 331)

Two years later, the Silenced No More Act was introduced. The STAND Act protected people in some cases, but it didn’t cover harassment with all protected classes. Two were able to talk about their issues with gender discrimination in the workplace, but they were not protected against speaking out about the racial discrimination they also experienced.

The Silenced No More Act went into effect in 2022 and protects against non-disclosures in any workplace harassment or discrimination complaint in any protected group, separation (termination) agreement, or employment contract, including:

• Age
• Color
• Mental or physical disability
• National origin
• Religion
• Retaliation
• Sex
• Sexual orientation

In addition to preventing employers from adding NDAs and gag orders in many situations, the Silenced No More Act also protects against non-disparagement agreements. Employers cannot stop employees from talking about workplace conduct that the employee feels is unlawful.

The bottom line is that employers cannot keep employees from speaking out when illegal or discriminatory acts occur within the workplace. There are, however, a few exceptions.

What’s Legal and What Isn’t

It is illegal for an employer to stop you from sharing facts about a discrimination, harassment, or retaliation complaint. Workers are allowed to discuss unlawful workplace conduct and don’t have to sign a non-disparagement clause or gag order. For example:

• You witnessed sexual harassment against a co-worker; your company cannot offer hush money and asks you not to speak to the media about the situation.
• You learned you were fired because you just turned 50. Your employer offers a settlement, but only if you agree to never talk about it.
• You quit your job because managers are known for harassing Hispanic workers. You’re told you must sign a non-disparagement clause before you get your final paycheck.

All of those are illegal reasons for using non-disparagement clauses, gag orders, or NDAs. However, there are some situations where your employer can ask you to sign one of these agreements. Your employer is within the law to require you to stay silent about:

• The amount of the settlement you receive.
• Trade secrets and proprietary information that would damage the company if they came out to the public or were shared with the competition.
• Non-disparagement clauses that focus on lawful workplace conduct.
• General releases of claims against the company in a termination/separation agreement.

Workers’ Rights and Protections and the Penalties Employers Face

You also have rights. You can ask that your identity be kept hidden. Your employer cannot reveal who you are to the media or anyone in the public without your consent. Your employer also has to include legalese in agreements to ensure it’s clear that you have the right to speak out against illegal acts in the workplace.

If you do speak out,  you have the right to do so without fear of a lawsuit by your employer. You have the right to talk to an attorney, and your employer has to give you at least five days to secure one. If you are let go, your employer cannot add a clause stating that you will never be rehired once you leave.

If you’re forced to sign an NDA or gag order and it doesn’t protect trade secrets or other proprietary information, it is not legally enforceable. It’s a violation of California’s Fair Employment and Housing Act (FEHA).

Your employer faces damages and possible punitive damages if you’re forced to sign and follow an illegal gag order or NDA. It’s also possible that the courts will tell your employer to pay for your legal fees. This is why it’s important to talk to an attorney in California if you have been told you must sign a gag order, NDA, or non-disparagement clause.

Protect Yourself By Working With a Workplace Discrimination Attorney

California’s employment laws offer impressive protection if you or someone you work with is harassed at work. Make sure you work with an attorney specializing in employment harassment claims and legal outcomes. You don’t want to and shouldn’t have to fight the case on your own.

Shegerian Conniff is here to support and guide you through the complex process. Reach us online or by phone to schedule a free consultation.