On more than one time, an in-house lawyer called me to sue a former employee for “drinking badly” the company, even though he had agreed not to denigrate the company as part of a severance deal or agreement. Nevertheless, I have often had to pass on to the client the bad news that, given the true language of the contract, there was little chance of imposing itself and/or even if we imposed ourselves, the legal fees would probably exceed the damages we reasonably hoped for to recover. However, the good news for those of you reading this article is that there are three simple steps you can take to dramatically improve the effectiveness and applicability of the non-disappearance clauses you wish to implement in the future. Exception for forced truthful statements. Each party may make true statements to the other party if it is prescribed by law by order, court proceeding or otherwise, without violating the non-disappearance requirements of this section. If we consider this clause as an agent, the first problem arises: what does it mean to “untangle” someone? Unlike “defamation,” there is no general definition of what it means to denigrate someone. Of course, you can always say that in your case, the statements are clearly pejorative, but there is no guarantee that your judge or jury will agree with their point of view. Therefore, when I use non-disappearance clauses, I add the following definition: the court found that a valid contract had been entered into when the defendant pressed the “I accept” button on the FreeLife site and that the non-remuneration clause was part of that contract. It found, somewhat surprisingly, that the clause was not unacceptable and did not exceed the defendant`s legitimate expectations. The accused lost round one. The second round, which attacks the content and validity of the disparage clause itself, was a more likely victory.
But the accused also lost the second round. Let`s decipher what denigration means in this context and what exactly you agree if you sign a no-disappearance clause. There are a few things to note: what is the offer on the table, and is it worth it for them? What do you get in return? Is it part of a severance agreement in which a company pays you to remain silent? It`s up to you to decide if this compensation is worth signing the contract, says Cheddie. There are exceptions that a non-disappearing agreement cannot take into account. According to Cheddie, an agreement cannot prevent anyone from asserting a right to worker`s compensation or from receiving benefits due to injury or illness. You can`t stop an employee from saying negative things to a government agency that`s conducting an investigation, Elkins says. For example, if the Equal Employment Commission reviews a discrimination claim or if an organization such as the FDA or EPO reviews your company`s practices, you can speak freely to that agency. If you are considering signing an agreement with a no-disappear clause, asking questions about it, understanding them and getting competent legal advice, especially if you are the one who, say, wants to denigrate the other party. In general, these agreements use a broad language that encompasses all kinds of denigration, from the IRL-Rants to the wrong mouth, which appears in writing and everything in between. Granovsky offers some examples of language that an employee might see in a non-disparage clause (you can find other examples on his blog): Non-disparage clauses are widely used in employment contracts and severance contracts.