State workers who want to speak out about wrongdoing have new protections under California law

California state workers who want to speak publicly about harassment, discrimination or any other unlawful conduct in their workplaces have new legal protections under a 2022 law.

Senate Bill 331, which took effect Jan. 1, says employers — including public agencies — can’t enforce what are commonly called “gag clauses” in employment contracts or settlement agreements.

Gag clauses have often been used to keep damaging allegations quiet in both the public and private sectors. The clauses, including some affecting California state government employees, gained attention during the Me Too movement for their role in helping abusers avoid accountability.

California lawmakers in 2018 banned gag clauses related to sexual harassment, sexual assault and sexual discrimination. This year’s law expands on those protections by specifying that employees may publicly discuss any “unlawful acts” in the workplace.

In practice, the new law mostly affects agreements related to discrimination based on age, disability or race, said Tim Yeung, an attorney who represents public employers for Sacramento firm Sloan Sakai Yeung and Wong.

Gary Messing, an attorney who represents public sector unions with Sacramento-based firm Messing, Adam and Jasmine, agreed.

“Sexual has been the focus and now we’re moving beyond that,” Messing said.

David Snyder, executive director of the San Rafael-based First Amendment Coalition, praised the new law.

“The law applying to any employment context is extremely valuable because it allows the public to know about specific wrongdoing,” Snyder said. “In the public context that’s particularly important because the public has the right to know whether a public employee has done something unlawful or inappropriate.”

The California Human Resources Department made training on the new law available to all state departments and agencies last month, but doesn’t have authority to enforce compliance, CalHR spokeswoman Camille Travis said in an email.

The new law goes so far as to say that any contractual provision restricting an employee’s ability to talk about workplace conditions must include the following language: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”

Representatives from five of the largest California state departments said they don’t have contractual provisions preventing employees from discussing workplace conditions publicly, so they won’t need to add the clause to any contract provisions.

Those departments are the Department of Corrections and Rehabilitation, the Franchise Tax Board, the Department of Motor Vehicles, Caltrans and the Department of Tax and Fee Administration.

The Employment Development Department’s public affairs officers declined to respond to questions about the new law.

Spokespeople from the departments said their media policies don’t fall under the contractual provisions discussed in the law, and that their media policies don’t prohibit employees from speaking on their own behalf about working conditions.

This story was originally published April 20, 2022 at 5:00 AM with the headline "State workers who want to speak out about wrongdoing have new protections under California law."