SB 1407, as amended, Jackson. Employment discrimination.
Existing law, the California Fair Employment and Housing Act, creates the Department of Fair Employment and Housing and authorizes the department to receive, investigate, and prosecute complaints alleging specified unlawful practices. Under existing law, any person claiming to be aggrieved by an alleged unlawful practice is authorized to file with the department a verified complaint, in writing, that states the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, that sets forth the particulars thereof, and contains other information as required by the department. Existing law requires any agreement entered into by any dispute resolution to be in writing.
This bill wouldbegin delete require a release of liability under the act to be valid only if the release is a separate and distinct document that includes a recital of claims that is based upon an employee’s internal or external complaint.end deletebegin insert
declare that a waiver or release of claims under this part is contrary to public policy and unenforceable, unless the waiver or release of claims is knowing and voluntary and is clearly stated as part of a negotiated settlement agreement of claims. The bill would prohibit a waiver or release of claims from being considered knowing and voluntary unless specified conditions have been met. The bill would prohibit a waiver executed under the bill from waiving any right or claim that arises following the execution of the waiver, except that a waiver or release that would be valid for purposes of a specified statute would also be valid for purposes of this bill, if the waiver or release also meets the conditions described in the bill. The bill would define “release of claims” for its purposes.end insert
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 12964.5 is added to the Government
2Code, to read:
A release of liability under this part shall be valid
4only if the release is a separate and distinct document that includes
5a recital of claims that is based upon an employee’s internal or
6external complaint.
(a) (1) A waiver or release of claims under this part
8is contrary to public policy and shall be unenforceable, unless the
9waiver or release of claims is knowing and voluntary and is clearly
10stated as part of a negotiated settlement agreement of the claims.
11(2) A waiver or release of claims shall not be considered
12knowing and voluntary unless, at a minimum, the following
13conditions have been met:
14(A) The waiver or release is part of a negotiated agreement
15between the individual and the employer that is written in plain
16language and in a manner calculated to be understood by that
17individual or by the average individual eligible to enter into a
18negotiated
agreement.
19(B) The waiver or release shall be in conspicuous writing,
20specifically refer to the individual’s claims under this part, and
21refer by name to the California Fair Employment and Housing
22Act (this part) in connection with the waiver or release.
23(C) The individual waives or releases claims under this part
24only in exchange for consideration in addition to anything of value
25to which the employee already is entitled.
26(D) The individual is advised in writing to consult with an
27attorney before executing the final negotiated agreement.
P3 1(E) The agreement shall not have the effect of misleading,
2misinforming, or failing to inform participants and affected
3individuals. Any advantages or disadvantages described shall be
4presented without exaggerating the
benefits or minimizing the
5limitations.
6(F) The individual shall be given at least 21 days after receipt
7to consider the final negotiated agreement.
8(G) The agreement shall provide that, for at least seven days
9following the execution of the agreement, the individual may revoke
10the agreement, and the agreement shall not become effective or
11enforceable until that seven-day period or a longer negotiated
12period has expired.
13(H) The waiver or release of claims is prohibited when the
14consideration for the waiver or release is employment, continued
15employment, or the payment of wages, including, but not limited
16to, a raise or a bonus, unless the individual has previously initiated
17a written claim to an administrative agency or a court, or presented
18a written grievance or complaint to the employer. In those
19instances, the
waiver or release of claims shall reference the
20written claim, grievance, or complaint.
21(b) A waiver executed under this section shall not waive any
22right or claim that arises after the execution of the waiver.
23However, a waiver or release of claims under this section, that
24would be valid for purposes of Section 1542 of the Civil Code, is
25valid under this section if the conditions under subdivision (a)
26have been met.
27(c) A waiver agreement does not affect the department’s
28authority and responsibilities to enforce this part. A waiver shall
29not be used to justify interfering with the protected right of an
30individual to file a charge or participate in an investigation or
31proceeding conducted by the department.
32(d) As used in this section, “release of claims” includes, but is
33not limited to, requiring an individual to
execute a statement that
34he or she does not possess any claims or injuries against the
35employer.
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