As a little extra respite, employers can always include non-insult clauses or similar provisions in agreements, provided there is specific language that clarifies the employee`s right to disclose information about illegal acts in the workplace. Without that wording, the provision would be contrary to public policy and inapplicable. Certainly, to ensure applicability, the creation of such language is best managed by consulting a lawyer. While the confidentiality of the settlement amount remains permitted, the amendment to section 12964.5 of the Government Code requires employers who offer general leave termination agreements to advise employees to consult a lawyer and allow a reasonable period of at least five days to do so. Employees have the right to sign a departure agreement in less than five days, provided that the shortened period is knowingly and voluntarily and is not motivated by a threat to withdraw the offer in less than five days. Non-disclosure agreements are still permitted if it is an employee`s preference, and provisions to protect an applicant`s identity remain permitted at the request of the applicant. In addition, settlement agreements may still contain provisions that prevent the disclosure of amounts paid to settle a case, as well as confidentiality clauses relating to threatened or unconfirmed claims that have not already been filed with a court or administrative authority. Some large companies often require their employees to sign an employee confidentiality agreement or property rights agreement that requires the employee to disclose any invention that has been written, designed, or reduced to practice up to one year after the end of the employee`s employment relationship. Some of these agreements also state that such inventions are presumed to be the property of the former employer and that this presumption can only be overcome if the employee can prove that the invention is eligible for protection under California Labor Code 2870. To meet this burden, the employee must demonstrate that the invention (1) was fully developed in its time without using the employer`s equipment, supplies, facilities or trade secret information. and (2) at the time of designing or reducing the practice, have no connection with the Employer`s business or actual or manifestly anticipated research or development, or result from any work performed by the Employee for the Employer. See California Laboratory Code 2870(a). Given the profound implications that follow illegal acts in the workplace, California employers should coordinate with their legal counsel to reassess their litigation strategies and carefully review and revise any form agreements that contain provisions that violate this new law to take full advantage of the limited protections remaining in the new year.
However, California courts generally rule that if these provisions go beyond the date of termination of employment, they are void as an “unreasonable restriction on trade, except to the extent that they relate to ideas and concepts based on [business] secrets or confidential information” of the former employer. Armorlite Lens Co.c. Campbell, 340 F.Supp. 273, 275 (S.D. Cal. 1972). Despite the fact that many employee confidential information agreements purport to require the disclosure and assignment of inventions developed after the termination of the employment relationship, these agreements are applied only to the extent that it can be established that the employee`s invention is based on or relates to trade secrets or confidential information of the former employer. Given that SB 331 applies to agreements entered into on or after January 1, 2022, employers should conduct a thorough investigation into all their active cases – not just those involving claims by gender – to determine whether some should be resolved by a non-disclosure agreement before the end of this year. Next year, employers could consider taking a more critical approach to their pre-litigation claims, which involve any form of harassment and discrimination, in order to take advantage of confidentiality provisions before they become unavailable after these lawsuits are filed. As a business lawyer for over 10 years, I have seen my fair share of unnecessary and unenforceable non-disclosure agreements and confidentiality agreements.
In general, this seems to happen when individuals choose a shape from a book or now on the Internet and rely on it as if a one-size-fits-all is suitable for everyone. Well, this is not the case for various reasons. .