New California Law Will Outlaw “No-Rehire” Provisions in Settlement Agreements
October 17 2019
I have discussed in the past how the use of “no-rehire” provisions in settlement agreements between employers and their former employees were coming under attack in court. In 2015, the Ninth Circuit in Golden v. California Emergency Physicians Medical Group held that a “no-rehire” provision in a settlement agreement between the plaintiff doctor and his former employer could be found to violate section 16600 of the Business and Professions Code, which codifies California’s long standing public policy favoring employee mobility. Section 16600 prohibits, with certain limited exception, any contract or agreement that places a restraint on a person’s trade or profession.
Employers find the use of “no-rehire” provisions useful in settlement agreements as a means of protecting themselves against “boomerang” lawsuits. That is, these provisions provide some protection to employers who settle claims with a former employee who claims that he or she was terminated because of discrimination from having to face a subsequent discrimination lawsuit if a former employee submits a new job application and is not hired.
California’s Legislature took up this issue and passed Assembly Bill No. 749, which was signed by Governor Gavin Newsom on October 12, 2019. AB 749 creates a new statutory provision, section 1002.5 of the California Code of Civil Procedure, which will apply to any settlement agreement entered into on or after January 1, 2020. This new law prohibits an employer from entering into a settlement agreement with an employee to resolve an employment dispute from inserting a provision “prohibiting, preventing or otherwise restricting a settling party that is an aggrieved person from obtaining future employment with the employer against which the aggrieved person has filed a claim” or any affiliate of that employer. Any provision that violates this section will be void.
The new law will define “aggrieved person” to mean any person who has filed a claim against the employer either in court, before an administrative agency, in an alternative dispute resolution forum such as arbitration, or through the use of the employer’s internal complaint process. The law does allow the employer and the settling employee to agree to “end a current employment relationship” as well as allows an employer to use a “no-rehire” provision provided that “the employer has made a good faith determination that the [former employee] engaged in sexual harassment or sexual assault.” Finally, the new law does nothing to affect an employer’s ability to decline to rehire a person “if there is a legitimate non-discriminatory or non-retaliatory reason for terminating the employment relationship or refusing to rehire the person.”
When this new law goes into effect, employers are encouraged to seek legal advice in resolving any disputes with an employee that may involve the termination of that employee’s employment as well as the handling of future applications for rehire from terminated employees who have entered into settlement agreements after January 1, 2020. This may include reviewing an employer’s form severance agreement to ensure compliance. While the new law does not apply by its terms to agreements containing such provisions entered into prior to January 1, 2020, employers must tread carefully. For further details about AB 749 and its history, please see the article, “New California Law Ban `No-Rehire’ Clauses after Worker Lawsuits,” by Wes Venteicher in The Sacramento Bee.