Terminating the Employment Relationship

required by the Public Records Act to disclose the information it had provided to the paper because no Public Records Act request had in fact been made. The Court explained that unless and until such a proper request had been made, the County would be required to honor the terms of the agreement and any disclosure would constitute an actionable breach of contract. The County also defended its disclosure by arguing that it was protected under the First Amendment. However, the Court explained that the County waived its free speech rights by agreeing to the confidentiality provision.

b. Confidential Documents Referenced In Agreement Documents referenced in, but not made a part of an agreement and not otherwise required to be disclosed are not subject to public disclosure. 332 Mere mention of an external document (e.g., Notice of Intent to Terminate) in an agreement does not automatically render the external document part of the agreement and subject to disclosure. In order for a confidential external document to become part of an agreement, there must be “clear and unequivocal” language in the agreement that the parties intended the external document be made part of the agreement. 6. N ON - DISPARAGEMENT A non-disparagement clause prevents one or both parties from disparaging the other party following execution of the agreement. Non-disparagement clauses may be unilateral (applicable to only one party) or bilateral (applicable to both parties). The following is an example of a bilateral non-disparagement clause:

Jones agrees not to make disparaging remarks about the City or Releasees, and the City agrees not to make disparaging remarks about Jones. Nothing contained in this Agreement is intended to prohibit or restrict Jones from providing truthful information concerning his employment with the City to any government, regulatory agency, self-regulatory agency, or potential employer. For purposes of this Agreement “disparagement” shall be defined by reference to its meaning in California common law.

We generally recommend having a unilateral non- disparagement clause that prevents the employee from disparaging the employer or not including a non- disparagement clause. For large organizations, it is difficult to monitor and prevent disparagement. A disparaging remark made by a low level employee could result in a breach of the agreement and subject the employer to attorneys’ fees.

LCW Practice Advisor

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 109