Non-Disparagement Clauses in California Severance Agreements: What You Can and Can't Say

Almost every severance agreement includes a non-disparagement clause. It says you agree not to make negative statements about your former employer, its executives, its products, or its business practices. Sounds straightforward, but the practical implications are more nuanced than most people realize, especially here in Los Angeles and across California.

What a Non-Disparagement Clause Typically Says

The standard clause reads something like: "Employee agrees not to make any disparaging, defamatory, or negative statements, whether written or oral, about the Company, its officers, directors, employees, agents, products, or services."

Some agreements go further. They include social media posts. They cover statements made to the press, to industry contacts, or to future employers. Some say you can't make "any statement that could reasonably be interpreted as negative or critical." That's extremely broad.

What California Law Protects

California has pushed back on overly broad non-disparagement clauses in several important ways.

The Silenced No More Act (SB 331). Effective January 2022, this law prohibits employers from using non-disparagement provisions to prevent employees from disclosing information about unlawful acts in the workplace, including harassment, discrimination, and any conduct the employee has reason to believe is illegal. This means your non-disparagement clause cannot stop you from talking about workplace harassment or discrimination, even after you sign the severance agreement.

Protected concerted activity. Under the National Labor Relations Act, you have the right to discuss wages, working conditions, and workplace issues with coworkers and others. A non-disparagement clause cannot override this federal protection.

Truthful statements to government agencies. You can always make truthful statements to government agencies like the CRD (which has a Los Angeles office), EEOC, DLSE, OSHA, or SEC. A non-disparagement clause cannot prohibit this.

Litigation privilege. Statements made in judicial proceedings or government investigations are privileged. The non-disparagement clause doesn't apply.

What the Clause Actually Prevents

After accounting for all the legal protections, the non-disparagement clause primarily prevents you from:

Publicly trashing the company on social media. Telling industry contacts or business partners that the company is terrible to work for. Giving negative interviews to the press about your employer. Making derogatory comments to future employers beyond factual descriptions of why you left.

For most people, these are reasonable restrictions. But the way the clause is written matters. A poorly drafted clause could be interpreted to prevent you from giving honest answers to future employers about why you left, from writing truthful Glassdoor reviews, or from discussing your experience with friends and family.

How to Negotiate Better Terms

Make it mutual. If you can't say negative things about the company, they shouldn't be able to say negative things about you. A mutual non-disparagement clause protects both sides equally. This is one of the most reasonable and commonly granted negotiation requests.

Carve out protected categories. Explicitly state that the clause does not restrict disclosures about harassment, discrimination, or illegal activity (as required by SB 331), truthful statements to government agencies, or discussions about wages and working conditions.

Define "disparagement" clearly. Vague clauses create uncertainty. Push for language that defines what constitutes a violation so you know where the line is.

Exclude private conversations. Some clauses try to prevent you from talking about your former employer to anyone, including friends, family, and therapists. Push for a carve-out that allows private, non-public discussions.

Set a time limit. Perpetual non-disparagement obligations are unusual. Push for a defined period, such as one or two years.

Consequences of Violation

What happens if you violate the non-disparagement clause? The agreement may specify liquidated damages (a set penalty amount), require you to return the severance payment, or allow the company to sue you for breach of contract. The enforceability of these penalties varies.

In practice, most employers don't sue former employees over casual negative comments. But a public, viral social media post trashing the company? That's more likely to trigger a response. Know the risks before you post.

Get the Language Right

The non-disparagement clause is one of the most negotiable provisions in a severance agreement. Before you sign, make sure you understand what you can and can't say, and negotiate for terms that are fair and clearly defined.

Our employment attorneys can review the non-disparagement clause in your agreement and negotiate better terms. Free consultation for employees in Los Angeles and Southern California.