Tools / Redlines
Redline toolkit
Asking for a change works better when you hand over the words. These are the three substitute clauses California workers and their lawyers propose most often, written out in full so you can paste them into a reply instead of describing them.
How to use these
These are starting points for a negotiation, not legal advice and not a guarantee that an employer will accept them. Send them as proposals, in writing, inside your review period, and keep the reply. If the amounts or the claims at stake are significant, have a California employment lawyer adapt them first. A clause you propose and the employer refuses is still useful: the refusal is part of the record. Background:Void, but still printed andThe unwaivable waiver.
Redline A: delete the non-compete, do not modify it
A non-compete in a California agreement is not a clause to soften. Business and Professions Code section 16600 voids a contract that restrains anyone from engaging in a lawful profession, trade or business, and sections 16600.1 and 16600.5 make including or attempting to enforce one a violation in its own right. The clean proposal is deletion:
[Delete the non-compete section in its entirety.] If a replacement is required, substitute: "Employee agrees to comply with the existing confidential-information and trade-secret obligations set forth in the [Employee Proprietary Information Agreement], and nothing in this Agreement restricts Employee's ability to engage in any lawful profession, trade, or business in accordance with California Business and Professions Code Section 16600."
The fallback gives the employer the protection the law allows: your existing confidentiality and trade secret obligations. It gives up nothing the employer lawfully owns.
Redline B: non-disparagement, mutual, with the statutory notice
Two defects recur in employer drafts: the obligation runs one way, and the notice Government Code section 12964.5 requires, in substantial form, is missing or narrowed. Without that notice, a provision restricting discussion of unlawful workplace conduct is unenforceable. Propose both fixes at once. Limit the clause to false statements made with actual malice, make it bind the company's officers and directors as well, and put the statutory language in verbatim.
"You further agree that you will not make, publish, or communicate any derogatory or negative statement concerning the Company, provided that this obligation applies only to false statements of fact made with actual malice. The Company agrees that its officers and directors will not make, publish, or communicate any derogatory or negative statement concerning Employee. 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, or from discussing this Agreement with your family, attorneys, tax or financial advisers, prospective employers, or any government agency."
The middle sentence of that clause tracks the notice section 12964.5 requires almost word for word. An employer who will not print its own statutory obligation is telling you something about the clause's intended use.
Redline C: the agency carve-out
A release can settle your own claims for money. It cannot lawfully take your right to file a charge with an agency, to participate in an agency investigation, or to talk to a regulator. Clauses blur that line more often than they cross it outright. Add this sentence at the end of the release section so the line is printed, not implied:
"Nothing in this Agreement waives any claim that by law cannot be waived, including but not limited to the right to file a charge or complaint with, or participate in any investigation or proceeding conducted by, the Equal Employment Opportunity Commission, the California Civil Rights Department, the National Labor Relations Board, the California Division of Labor Standards Enforcement, the Securities and Exchange Commission, or any other federal, state, or local agency. Employee retains the right to truthful testimony pursuant to legal process and to communicate directly with government agencies without notice to the Company. While Employee may not be entitled to monetary relief resulting from any such proceeding to the extent released hereunder, this Agreement shall not be construed to prevent or penalize any reporting, cooperation, or participation."
The final sentence matters. It concedes the part the employer lawfully gets, that a valid release may cover your personal monetary recovery, while protecting the part it does not: the reporting itself. That concession is what makes the clause hard to refuse.
Send them one at a time or together?
Together, in one email, numbered, inside your review period. A single written record of what you proposed and when beats three scattered asks. Each of these clauses stands on its own if the employer accepts some and refuses others. The email asking for a change list for a revised version is a different tool:Ask for a redline.