Terminating the Employment Relationship

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. 341 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). Beginning January 2022, under SB 331, a settlement agreement may not contain a provision that prevents or restricts disclosure of factual information related to a claim filed in a civil or administrative action regarding any form of discrimination based on protected classifications. 342 Additionally, any contractual provision that restricts an employee’s ability to disclose information related to conditions in the workplace must include the following statement, or substantially similar 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 .”

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. Additionally, nothing in this agreement prevents Jones from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that Jones has a reason to believe is unlawful. 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

LCW Practice Advisor

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 112