What is a Non-disparagement Agreement?

Let’s say that you are starting a new job, and your new employer puts a bunch of paperwork in front of you to sign. Some seem reasonable, like confidentiality agreements or protection for the employer’s trade secrets. But then they want you to sign something else: a non (or no) disparagement clause. Should you sign it?

What is Non-Disparagement?

A non disparagement clause is a contract or part of a contract that restricts you from saying anything negative about your employer. In some cases, it might restrict you from saying anything negative in public or online (including on social media), and in other cases, it may be even stricter, preventing you from disparaging your employer verbally, to anybody, anywhere, even privately.

Some no disparagement clauses might restrict you from saying anything false that is negative (basically, lying about your employer), while others will prohibit any negative talk–even talk that might be technically and factually true.

Whether your employer knows what you say to your family around the dinner table, or what you tell your buddy at happy hour, can be questioned–but if it gets out that you said something disparaging, you could end up in legal trouble.

Backwards and Forwards

No disparagement clauses also can outlast your employment–that is, depending on how the clause is worded, it might prohibit you from saying anything negative or disparaging, even after your employment with the company has ended.

No disparagement clauses can go “backwards” as well–they can punish you if you happen to have said anything negative about your employer, before your employment. That means that if you do sign one of these disparagement clauses, you may have to audit your online or social media posts, to get rid of anything that might violate the clause.

First Amendment Concerns

Many people’s first impression when confronted with a no disparagement clause, is that they have a first amendment right to say what they want. That isn’t necessarily true, when it comes to private (non-governmental) businesses, which can restrict what their employees say and when, while they’re at work or being paid by their employer.

Defining Disparaging

Questions can arise as to what is disparaging, and what is not. If you post online “I can’t believe my boss had me work late today,” that could be seen as disparaging, even though it’s really just a complaint. The general complaining that many co-workers do in an office, to other co-workers can be seen as disparaging.

But other times, disparagement is only about the company itself, and anything that could ruin its reputation in the public eye.

The best option, if possible, is to get as specific a definition of disparagement as you can in a non-disparagement agreement before signing it.

Consideration

Disparagement clauses do require consideration. So, your employer must give you something (increased salary, some work benefit, or some other benefit you otherwise wouldn’t have had), in return for your agreement to sign a no disparagement agreement.

Let us help you with any issues related to your employment contracts. Contact the San Jose employment law attorneys at the Costanzo Law Firm today.

Source:

themuse.com/advice/non-disparagement-clause-agreement-sample#:~:text=What%20Is%20a%20Non%2DDisparagement,in%20any%20form%20of%20communication.