JT O’Donnell, of Careerrealism.com, recently posted a query from a reader regarding non-disparagement clauses. The reader asked whether clauses prohibiting an employee from saying anything negative about an employer in exchange for a severance payment were legal. (Yes…absolutely!) She went on to ask what would happen if the employee agreed and later made what he thought was an innocent statement that the company perceived as a violation of the agreement. (Litigation ensues…) What the reader described was a non-disparagement clause.
Over the years, I have drafted, revised, and reviewed scores of severance agreements. Without exception, all of these agreements contained similar provisions requiring the parties to the agreement to refrain from any negative statements regarding the other. In short, employers are willing to pay to ensure there is no airing of their dirty laundry once the former employees traverse the revolving door. Faced with these clauses, I generally negotiate for mutuality on behalf of my employee clients being forced to assent to a non-disparagement provision in exchange for a severance payment to ensure that while the employee is keeping mum about the employer, the employer- as a whole, or sometimes specific individual agents of the employer – does the same. (Or better yet, offers a positive reference, as Ms. O’Donnell suggests. This isn’t always practical, unfortunately).
This is not to say that I have not had clients that have felt very strongly regarding their former employer’s deeds (or misdeeds) and sought to reject a severance payment in favor of a media campaign against the employer. I always counsel against this course of action. Even if an employee rejects the non-disparagement agreement, then is well-intentioned in telling others – very loudly and often -the (negative) truth regarding the former employer, the employer may still sue. Whether the employee believed that her statements were absolutely true, the employer could allege defamation. Truth is a defense to defamation, but it would be a great deal of legal fees, headaches, and heartaches – figurative and literal- before the litigation concludes. Ultimately, such a crusade is rarely worthwhile and impedes everyone’s ability to move forward. Besides, it is just bad manners.
So what’s an employee to say after signing a non-disparagement clause? Ms. O’Donnell offers some suggestions that seem perfectly fine. I often collaborate with employee clients to craft a message to detail the reasons for his or her departure in a non agreement-violating way. When representing either employee or employer, I negotiate the definition of a disparaging statement within the agreement itself, lest the parties unwittingly disparage.
Parting ways with an employer or employee is always a very emotional experience for those involved – much akin to a divorce in many ways. It is very human to want to share (shout) about the negative experiences that led to the dissolution of the relationship. Think of the non-disparagement clause as a handy device to ensure you – as the employee – do not say anything that you would not say anyway once you benefitted from a little distance and reflection. And don’t forget that you are getting paid for it.