Some employees only hear the term non-disparagement when they’re on the way out. It shows up in a severance agreement or settlement offer, usually buried in dense legal language. But what does it actually mean—and should you sign it?
In California, whether a non-disparagement agreement or clause can be enforced depends on the context, the exact wording, and whether it crosses the line into silencing protected speech. State and federal laws both place limits on what an employer can ask you to agree to—and what rights you’re allowed to keep, no matter what you sign.
A non-disparagement clause is a statement that one or both parties agree not to make negative comments about the other. It can show up in different kinds of agreements: employment contracts, severance packages, or settlements.
The language usually covers more than just public statements. It typically covers anything that could harm the other party’s reputation—whether written or spoken, in private or online.
Example:
“The employee agrees not to make any oral or written statements, including on social media, that would reasonably be viewed as disparaging to the company, its officers, employees, products, or services.”
Some go even further, adding restrictions on what you can say about “associated third parties” like clients or vendors, or include vague phrases like “false light” or “negative light.”
A few years ago, signing a non-disparagement clause meant you had to be careful what you said—even if your statements were true. That’s no longer the case in California.
State law now limits how far these clauses can go. Under SB 331 (the Silenced No More Act), employees can’t be prevented from talking about unlawful conduct they experienced at work—like harassment, discrimination, retaliation, or other violations of state or federal law.
If a non-disparagement clause doesn’t explicitly state that it doesn’t apply to unlawful acts, it’s unenforceable in California.
Non-disparagement language isn’t always included in standard employment paperwork. But it’s very common when the working relationship ends, especially:
When an employee is being let go or offered a severance agreement, financial security usually takes priority. Employers know that. They may offer a payment or benefit in exchange for silence—hoping to protect their public image or prevent future complaints.
If a non-disparagement clause tries to restrict what you can say about unlawful workplace behavior—and leaves out the exception language required under SB 331—it likely won’t hold up in court.
In California, Government Code § 12964.5 makes it unlawful for employers to include a non-disparagement clause without clear language that preserves your right to disclose unlawful conduct.
A compliant clause is required to include wording along these lines:
“Nothing in this agreement prevents you from disclosing information about unlawful acts in the workplace, including harassment or discrimination or any other conduct you have reason to believe is unlawful.”
That carve-out is not optional. If it’s missing, the entire clause could be void.
The same rule applies whether you're signing a new contract or leaving your job with a severance agreement. If a non-disparagement clause shows up in either context, check whether it includes the required language. Without it, you're not obligated to comply—and your employer shouldn't be using that clause at all.
Some employers argue that if you’re offered severance and choose to accept it, the agreement is voluntary and therefore enforceable. That argument doesn’t hold up under California law when it comes to gag clauses about unlawful behavior.
The law focuses on what the clause says, not whether you agreed to it. Even if you sign willingly, a non-disparagement clause is void if it limits your right to speak about:
California law is clear: these rights can’t be signed away, even in a voluntary agreement.
No. A non-disclosure agreement (NDA) is designed to keep certain information confidential—like trade secrets, company strategy, or the terms of a financial settlement. A non-disparagement clause, on the other hand, focuses on what you say about the company or its reputation.
But the two clauses often appear together, and in practice, they can both discourage employees from speaking out. That’s why SB 331 applies to both. Whether the clause is labeled “confidentiality” or “non-disparagement,” it still must include language preserving your right to talk about unlawful conduct.
Yes, but they’re limited.
An employer can ask you not to make knowingly false or defamatory statements. They can also ask you not to trash their products or people in ways that would harm the business—as long as you’re not being silenced about something illegal.
Some employees also prefer to keep things private. If you're leaving on good terms or simply don’t want your name associated with a past employer, you might be fine agreeing not to discuss it publicly. That’s your choice. The key is that you’re not being pressured into silence about something that matters.
In 2022, Congress passed the Speak Out Act, which blocks enforcement of NDAs and non-disparagement clauses in sexual harassment or assault cases if the agreement was signed before any dispute arose.
And in 2023, the National Labor Relations Board ruled that employers can’t offer severance agreements that gag employees from talking about workplace conditions. That ruling applies under the National Labor Relations Act, which protects most non-supervisory employees—even those who don’t belong to a union.
Under federal law, any clause that prevents you from discussing pay, working conditions, or safety concerns with co-workers may violate your right to “concerted activity.”
If you’re not sure whether your role qualifies, talk to an employment attorney. The law is written to protect you from being silenced about your workplace.
Sometimes they try.
Some companies still use old template agreements with unenforceable language. Others rely on intimidation—assuming the employee won’t push back.
But California courts won’t enforce a clause that violates public policy. And employers who try to use illegal contract language can open themselves up to liability.
Even if you’ve already signed a severance agreement, you still have options. If the language wasn’t lawful to begin with, you may not be bound by it—especially if you were denied time to review it or discouraged from consulting legal counsel.
When a severance package is on the table, you’re likely thinking about health insurance, unpaid vacation, or how long the payment will last. But what you say yes to in that moment can affect your rights long after you’ve left the job.
Before you sign:
In many cases, you can negotiate the language. You don’t have to accept the first version of the agreement. If it lacks the right carve-outs or includes vague restrictions on “negative comments,” push back.
That depends on the wording. But in general, disparagement means:
Even if a statement is true, it might still be considered “disparaging.” That’s why the carve-out for truthful statements about unlawful conduct is so important.
Remember: truth is not defamation. But without legal clarity in the agreement, a former employer might still try to use a clause to scare you into silence.
A non-disparagement clause cannot legally prevent you from:
That also includes contacting the EEOC, California Civil Rights Department, Labor Commissioner, or any other authorized body.
If a clause seems to restrict those actions, it’s invalid.
A non-disparagement clause might look harmless—just a few lines tucked into a longer document. But those lines can carry weight if they’re used the wrong way.
In California, the law protects employees from being silenced about unlawful behavior. If a company tries to block you from speaking up, or hands you a contract that doesn’t follow the rules, you have every right to question it.
Before you sign, read carefully. Look for language about “disparaging remarks,” “false light,” or “negative statements.” And always check whether the clause includes the required exception allowing you to speak about unlawful acts.
You’re allowed to tell the truth. No agreement can take that away from you.
If you’ve been offered a severance agreement or pressured to sign something you don’t fully understand, call The Law Offices of Jeremy Pasternak. We help executives and employees protect their rights before they sign—and if they've already signed, we can help them assess their options. Reach out today for a confidential consultation by calling (415) 693-0300 or sending us an email.
Disclaimer: The information provided on this website is for general informational purposes only and does not constitute legal advice. Viewing this content does not create an attorney-client relationship with The Law Offices of Jeremy Pasternak. Employment law varies by state and situation, and legal outcomes depend on specific facts and applicable laws. While we make every effort to ensure accuracy, laws change, and unintended errors or omissions may occur. For advice on your particular circumstances, consult an attorney.
