Settlement agreements

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On October 10, 2021, California Governor Gavin Newsom approved Senate Bill 331 which, effective January 1, 2022, significantly expands restrictions relating to non-disclosure and non-disparagement provisions in many settlement and separation agreements.

First, Senate Bill 331 expands the existing prohibitions on non-disclosure and non-disparagement provisions in settlement agreements. Existing law, under section 1001 of the California Code of Civil Procedure, already prohibits settlement agreements from having non-disclosure or non-disparagement provisions that prevent the disclosure of facts relating to a claim filed in a civil or administrative action regarding sex-based claims, including sex-based discrimination, sexual harassment, or related retaliation. Effective January 1, 2022, this amendment expands the prohibition on non-disclosure and non-disparagement provisions that prevent the disclosure of facts relating to a claim, outside of sex-based claims, to include discrimination, harassment, or retaliation claims based on any protected category under section 12940 of the Government Code, such as race, religion, national origin, and disability.
Continue Reading California expands restrictions on non-disclosure provisions

At the end of 2018, a report from a committee of the UK parliament called on employers and regulators to take a more proactive role in relation to sexual harassment in the workplace, including in relation to the use of confidentiality (non-disclosure) agreements.

In its recent response to that inquiry, the government has set out its ‘measures to prevent the misuse of confidentiality clauses in situations of workplace harassment or discrimination’. This response, together with the launch of its consultation on tackling the wider issue of sexual harassment in the workplace, reflects the UK’s continued focus on the issue of workplace harassment.

Confidentiality clauses tend to be drafted into contracts of employment and settlement agreements. They are provisions in those contracts which seek to prohibit the disclosure of information. While recognising that confidentiality clauses serve as a useful and legitimate mechanism both during the course of and after employment (for example, to prevent employees from sharing company proprietary information with competitors), the UK government has made it clear that they should not be used to ‘gag’ and intimidate victims of workplace harassment and/or discrimination. The government has confirmed that, when parliamentary time allows, it will provide guidance on drafting requirements for confidentiality clauses and legislate to, in summary:

Continue Reading UK government consultation: UK to legislate on use of confidentiality (non-disclosure) agreements in the workplace

On March 29, 2019, a California Court of Appeal held that a trial court did not retain jurisdiction under Code of Civil Procedure section 664.6 to enforce a settlement agreement after dismissal of the underlying lawsuit because the parties did not comply with the strict requirements of section 664.6. At first blush, the decision in Mesa RHF Partners, L.P. v. City of Los Angeles (Mesa) may not seem significant; however, the court’s holding now requires litigants and their counsel to consider modifying the procedures they typically use to settle and dismiss cases, at least to the extent they want the trial court to retain jurisdiction to later enforce their settlement agreements if that becomes necessary.

Section 664.6 allows for parties to file a stipulation to allow a trial court to retain jurisdiction over a dismissed case to enforce a settlement agreement “in a writing signed by the parties.” In Mesa, the parties resolved a dispute and indicated in their settlement agreement that “[t]he Court shall retain jurisdiction pursuant to [section 664.6] to enforce the terms of the Settlement Agreement.” As is often done, counsel for the plaintiffs then signed and filed a request for dismissal on a printed court form. Counsel even went so far as to insert language on the form that stated the trial court would retain jurisdiction to enforce the settlement under section 664.6.Continue Reading California Court of Appeal cracks down on non-compliant requests for trial courts to retain jurisdiction to enforce settlement agreements

The sun may have finally decided to make an appearance but this is no indication of a relaxing summer break for employment specialists!

A number of key employment law provisions came into force on 25 June 2013, with 29 July 2013 as the next key date for legislative reform. We take a look at what employment-related legislative changes are in store this summer.Continue Reading UK Legislative Reform – No Summer Break