California Severance Agreements: Which Speech Is Protected?

A promise not to speak negatively about an employer is different from a release of legal claims. It is also different from keeping the severance payment confidential. Before signing a California separation agreement, identify which promise each clause makes and what speech it protects.

This guide focuses on workplace disclosures under Government Code section 12964.5. The Civil Rights Department’s official guidance on separation and settlement agreements, pages 3–5, explains the distinctions. Other laws and the actual agreement require separate review.

Separate the release of claims from the promise to stay silent

A separation agreement can contain an otherwise lawful general release. That does not mean it can prohibit disclosure of unlawful workplace acts. Conversely, a protected-disclosure exception does not mean that no legal claims have been released. These provisions answer different questions.

Make two lists. On one, identify the claims and people covered by the release. On the other, identify each restriction on future speech: confidentiality, nondisparagement, cooperation (such as assistance in future proceedings), references and any duty to repay money after an alleged breach. Read the exceptions beside the restrictions they qualify.

For example, an agreement might allow discussion of unlawful workplace conduct while separately restricting disclosure of the payment amount. Do not assume permission to discuss one subject allows disclosure of the other. This is a way to organize the review, not a conclusion that a particular clause is enforceable.

Look for the protected-disclosure exception

Section 12964.5 prohibits a separation provision that bars disclosure of information about unlawful acts at work. This includes harassment, discrimination and other conduct the employee has reasonable cause to believe is unlawful. A nondisparagement or other provision restricting discussion of workplace conditions must contain the statute’s protective language in substantial form.

Find that language in the actual document. Check whether another paragraph appears to contradict it, requires advance permission to speak, or threatens repayment for statements the exception protects. Those are questions for review; a heading such as “standard confidentiality” does not resolve them.

The protection does not make every negative statement protected or authorize taking and publishing records you have no right to possess. Keep the proposed agreement and the records you lawfully hold. Discuss sensitive documents with counsel rather than posting them online.

Classify the information the clause covers

• Unlawful workplace acts: Check that the clause preserves the disclosures protected by section 12964.5.
• The severance amount: The statute permits a provision keeping the amount paid confidential.
• Trade secrets and proprietary material: The statute permits protection of information unrelated to unlawful workplace acts.
• Several subjects in one sentence: Mark each subject separately. A permissible payment-confidentiality term does not answer whether a broad workplace-silence term is lawful.

Our employment litigation guide explains the firm’s practice. If the underlying issue concerns a manager’s personal responsibility, the workplace harassment personal-liability analysis addresses that separate question.

Check the review period and the kind of agreement

For the separation agreements covered by section 12964.5, the employer must notify the employee of the right to consult an attorney and provide a reasonable period of at least five business days. An employee may choose to sign sooner only if they understand that choice and make it freely. That early decision must not be induced by the employer through fraud, misrepresentation, threats to withdraw or change the offer before the review period ends, or different terms for early signers. Preserve the offer email, delivery date, deadline and any message threatening early withdrawal or different terms.

Section 12964.5 does not apply to a negotiated settlement resolving an underlying employment civil-rights claim filed in court, before an agency, in another dispute-resolution forum or through the employer’s internal complaint process. The statute defines a negotiated agreement as voluntary, deliberate and informed: It must provide something of value to the employee, who must have notice and an opportunity to retain a lawyer or already be represented. Other limits on confidentiality may still apply; this exception is not permission to prohibit every disclosure. For example, the CRD guidance explains that a settlement resolving an agency complaint or court case cannot prohibit disclosure of the covered facts about unlawful discrimination or harassment, although it may keep the amount paid confidential. Ask which restrictions apply to the particular complaint and agreement.

For a focused review, bring the complete agreement and attachments, every revised version, the stated deadline, the complaint record if one exists, and a marked copy showing each speech restriction and exception. Ask which terms affect your claims, which affect what you may say, and which obligations continue after payment.