Can My Severance Agreement Stop Me From Talking About My Job?

Almost every severance agreement asks you to keep quiet about something. Usually it's two clauses: a confidentiality clause (don't share the terms of the deal, or company information) and a non-disparagement clause (don't say anything negative about the company). Some of that is lawful. A lot of it is written broader than the law allows, in the hope you won't check.

What did California's Silenced No More Act change?

The Silenced No More Act (SB 331) took effect on January 1, 2022. It rewrote Government Code section 12964.5 and expanded Code of Civil Procedure section 1001, which covers settlements of filed claims.

Before 2022, California's limits on these gag clauses mainly covered sexual harassment and sex-based discrimination. The Silenced No More Act extended them to harassment, discrimination, and retaliation of any kind covered by the law, including claims based on race, disability, age, religion, and sexual orientation.

For severance agreements, the core rule is short. A separation agreement can't include a provision that prohibits you from disclosing information about unlawful acts in the workplace (Gov. Code § 12964.5(b)(1)(A)). A clause that tries anyway is against public policy and unenforceable.

What wording does California require in my agreement?

If your separation agreement has a non-disparagement clause or any other clause limiting what you can say about the employer, the law requires it to include language substantially like this (Gov. Code § 12964.5(b)(1)(B)):

"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 statute defines "information about unlawful acts in the workplace" to include harassment, discrimination, and other conduct you have reasonable cause to believe is unlawful (Gov. Code § 12964.5(c)). You don't need to be certain something was illegal, and you don't need a lawsuit on file.

Find that sentence in your agreement. If it isn't there, the clause is out of compliance, and an employer with a defective agreement has a reason to fix it and a reason to negotiate.

What can my employer still keep confidential?

California doesn't ban every confidentiality term. Under section 12964.5, your employer can still:

• Keep the severance amount private. A clause barring you from disclosing how much you were paid is allowed (Gov. Code § 12964.5(e)).
• Protect trade secrets and proprietary information. Customer lists, pricing, source code, and other confidential business information that doesn't involve unlawful acts can stay protected (Gov. Code § 12964.5(f)).
• Get a general release. The company can still ask you to give up your claims in exchange for the money, as long as the release is otherwise lawful (Gov. Code § 12964.5(b)(3)).

So a clause that says "you won't reveal the amount of this payment" is fine. A clause that says "you won't say anything about your employment, ever, to anyone" is not, at least as applied to unlawful conduct.

Does it matter if I already filed a complaint?

Yes. Section 12964.5 does not apply to a negotiated settlement of a claim you've already filed in court, with a government agency, in arbitration or another dispute resolution process, or through your employer's internal complaint process (Gov. Code § 12964.5(d)). "Negotiated" means the agreement was voluntary, deliberate, and informed, gave you something of value, and either you had notice and a chance to hire a lawyer or you had one.

Different limits apply there. If you filed a lawsuit or an agency complaint involving sexual assault, sexual harassment, or workplace harassment, discrimination, or retaliation, a settlement can't prevent or restrict disclosure of factual information about that claim (Code Civ. Proc. § 1001(a)). At your request, it can shield your identity, and it can still keep the settlement amount confidential (Code Civ. Proc. § 1001(c), (e)).

If you're settling a complaint you already made, the agreement in front of you may play by these different rules. Read it with that in mind.

What does federal law say about severance gag clauses?

The National Labor Relations Act protects the right of workers to talk with each other about pay and working conditions, union or no union. In McLaren Macomb, 372 NLRB No. 58 (2023), the National Labor Relations Board held that an employer violates federal labor law just by offering a severance agreement with broad confidentiality and non-disparagement clauses that restrict those rights. You don't have to sign it for the offer itself to be unlawful.

McLaren Macomb is still the Board's rule today, but it may not last. The Board now has a 3-1 Republican majority after new members were sworn in this August. In an April 2026 decision, the two Republican members serving then applied McLaren Macomb as current precedent but said they would be open to reconsidering it in a future case. Expect a challenge. California's protections come from state law and don't depend on what happens at the NLRB.

Who isn't covered by the federal rule?

The NLRA doesn't cover everyone. Its definition of "employee" leaves out supervisors, independent contractors, agricultural workers, domestic workers in a family's home, and people who work for railroads or airlines (29 U.S.C. § 152(3)). It also doesn't cover government employers, including federal, state, and local agencies (29 U.S.C. § 152(2)).

"Supervisor" is a legal term. It generally means someone with real authority, using independent judgment, to hire, fire, discipline, promote, or direct other workers, or to recommend those actions (29 U.S.C. § 152(11)). Plenty of people with "manager" in their title don't meet that definition, and plenty of people without it do.

If the federal rule doesn't reach you, California's protections still can. Section 12964.5 applies to California workers whether or not they're covered by the NLRA.

Should I ask for a mutual non-disparagement clause?

Usually, yes. A one-way clause keeps you quiet while your former manager stays free to talk about you. If you agree to a non-disparagement clause, ask for the company to make the same promise and to commit to what it will say when a future employer calls. Our guide to red flags in a California severance agreement covers that and the other clauses to watch for.

The takeaway

Before you sign, find every clause that limits what you can say. Check for the "Nothing in this agreement prevents you" sentence. Mark anything that reaches past the severance amount and real trade secrets. Then decide what you're willing to give up, because your silence has value to the company, and it's fair to be paid for it.

This article is general information about California and federal law as of its date, not legal advice for your situation. Laws change, and the right move depends on your facts.