Clamping down on confidentiality, the Legislature tests the limits

Could California end the practice of contracting for confidentiality in any settlement agreement? Can it put the kibosh on non-disparagement clauses? Can it make void as to public policy any agreement not to speak about something?

These are some of the questions the legislature will be considering under the varying efforts introduced this session. On the narrower end, AB 3057, authored by Assemblywoman Sharon Quirk-Silva (D-Fullerton), would prohibit the enforcement of any confidentiality clause related to sexual abuse or harassment. This is an attempt to address concerns that sexual harassment proliferates when perpetrators are able to silence victims through contract.

A much broader measure, authored by Assembly Judiciary Committee chair Mark Stone (D-Scotts Valley) would make void any agreement not to speak about an issue of public concern. The language of AB 3109 says that any agreement made after Jan. 1, 2019 is void and unenforceable if it waives a party’s “right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” It also makes void any contract term that restricting an individual’s right to seek employment or reemployment.

CNPA previously reported on the first bill introduced to address this issue, SB 820 by Senator Connie Leyva (D-Chino) which would prohibit a confidentiality clause in a settlement agreement related to sexual assault, harassment, and workplace violations based on harassment or discrimination. It also includes a provision that says a victim can contract for confidentiality-but not the entity settling the claims. This is troubling in the context of government settlements because it gives a third party the right to control the disclosure of public records-which is contrary to longstanding statutory and case law.