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 would 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 andbegin delete 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 deletebegin insert voluntary.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:
begin delete(a)end deletebegin delete end deletebegin delete(1)end deletebegin delete end deleteA waiver or release of claims under this part
4is contrary to public policy and shall be unenforceable, unless the
5waiver or release of claims is knowing andbegin delete voluntary and is clearly
6stated as part of a negotiated settlement agreement of the claims.end delete
7begin insert voluntary.end insert
8(2) A waiver or release of claims shall not be considered
9knowing and voluntary unless, at a minimum, the following
10conditions have been met:
11(A) The waiver or release is part of a negotiated agreement
12between the individual and the employer that is written in plain
13language and in a manner calculated to be understood by that
14individual or by the average individual eligible to enter into a
15negotiated
agreement.
16(B) The waiver or release shall be in conspicuous writing,
17specifically refer to the individual’s claims under this part, and
18refer by name to the California Fair Employment and Housing Act
19(this part) in connection with the waiver or release.
20(C) The individual waives or releases claims under this part
21only in exchange for consideration in addition to anything of value
22to which the employee already is entitled.
23(D) The individual is advised in writing to consult with an
24attorney before executing the final negotiated agreement.
25(E) The agreement shall not have the effect of misleading,
26misinforming, or failing to inform participants and affected
27individuals. Any advantages or disadvantages described shall be
28presented without exaggerating the
benefits or minimizing the
29limitations.
P3 1(F) The individual shall be given at least 21 days after receipt
2to consider the final negotiated agreement.
3(G) The agreement shall provide that, for at least seven days
4following the execution of the agreement, the individual may
5revoke the agreement, and the agreement shall not become effective
6or enforceable until that seven-day period or a longer negotiated
7period has expired.
8(H) The waiver or release of claims is prohibited when the
9consideration for the waiver or release is employment, continued
10employment, or the payment of wages, including, but not limited
11to, a raise or a bonus, unless the individual has previously initiated
12a written claim to an administrative agency or a court, or presented
13a written grievance or complaint to the employer. In those
14instances, the
waiver or release of claims shall reference the written
15claim, grievance, or complaint.
16(b) A waiver executed under this section shall not waive any
17right or claim that arises after the execution of the waiver.
18However, a waiver or release of claims under this section, that
19would be valid for purposes of Section 1542 of the Civil Code, is
20valid under this section if the conditions under subdivision (a) have
21been met.
22(c) A waiver agreement does not affect the department’s
23authority and responsibilities to enforce this part. A waiver shall
24not be used to justify interfering with the protected right of an
25individual to file a charge or participate in an investigation or
26proceeding conducted by the department.
27(d) As used in this section, “release of claims” includes, but is
28not limited to, requiring an individual to
execute a statement that
29he or she does not possess any claims or injuries against the
30employer.
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