Terminating the Employment Relationship

accountants after advising such parties of this confidentiality provision.

We generally recommend having a unilateral confidentiality clause that prevents an employee from disclosing the terms of the agreement. A bilateral confidentiality clause can lead to problems for an employer with multiple employees who may disclose the terms of the agreement. It becomes very difficult for an employer to control what its employees say about an agreement, and one leak can lead to a breach of the agreement. If a bilateral confidentiality clause is essential, we recommend consulting legal counsel to discuss how it may be structured to minimize the risk of breach.

LCW Practice Advisor

a. Public Records Act Requests Agreements that involve payment of public funds are generally considered public records that must be disclosed pursuant to a valid Public Records Act request. 339 Consequently, a confidentiality clause in an agreement cannot shield the agreement from disclosure pursuant to a California Public Records Act.

Sanchez v. County of San Bernardino 340 In Sanchez , an employee and his county employer agreed to a confidentiality clause in a settlement agreement. However, the County told a local newspaper that Sanchez resigned because of an improper relationship with the Union President. Sanchez sued for violation of the confidentiality clause. The County argued that the Public Records Act required it to disclose the information and that the confidentiality clause was unenforceable to the extent it prevented the County from disclosing such information. The Court determined that the confidentiality clause was enforceable because it expressly carved out any disclosures “permitted by law.” The Court found that the County was not 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.

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 111