An employer cannot require the execution of a release or non-disparagement agreement in exchange for any condition of employment and broadened non-employee harassment. Changes to the laws concerning harassment, discrimination, etc. (Government Code § 12940, 12965, 12923, 12950.2, and 12964.5) broadened the definition of harassment to include any type of harassment, not merely sexual, for which an employer may be responsible when committed by a non-employee. The law also makes it unenforceable to require a release or non-disparagement agreement in order to obtain or keep a job.

The legislature took notice of Justice Ruth Bader Ginsburg statements in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 by enacting Government Code §§ 12940, 12965, 12923, 12950.2, and 12964.5. Effective January 1, 2019.

The limitation as to release agreements is if it is a condition to new or continued employment except if is part of a negotiated settlement agreement for an existing dispute.  See Government Code § 12964.5 which provides in pertinent part:

Government Code § 12964.5: (a) It is an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:

(1) (A) For an employer to require an employee to sign a release of a claim or right under this part.

(B) As used in this section, “release of claim or right” includes requiring an individual to execute a statement that he or she does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.

(2) (A) For an employer to require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.

(B) For purposes of this paragraph, “information about unlawful acts in the workplace” includes, but is not limited to, information pertaining to sexual harassment or any other unlawful or potentially unlawful conduct.

(b) Any agreement or document in violation of this section is contrary to public policy and shall be unenforceable.

(c) (1) This section does not apply to a negotiated settlement agreement to resolve an underlying claim under this part that has been filed by an employee in court, before an administrative agency, alternative dispute resolution forum, or through an employer’s internal complaint process.