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Everything You Need to Know About Non-Disparagement Clause 

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We have all heard the phrase, “If you can’t say anything nice, don’t say anything at all.” This phrase was frequently told to us by our parents and teachers when we were young. But are you aware of the non-disparagement clause? It is a legal term that usually pops up within the employment contract that is provided to you by your employer. In this article, we will be talking about the non-disparagement clause that enables the notion of “speak no ill” within the workplace.  

What is a Non-Disparagement Clause?

What is a Non-Disparagement Clause?

A non-disparagement clause simply states that you will not be able to say anything negative about the organization and its services, products, or leaders. Moreover, this clause classifies that you will not be able to say anything negative in any form of communication.  

Similarly, the non-disparagement clause aims to prevent the company’s employees from telling their friends or posting on social media that their boss is a jerk. This is because when an employee posts or tells someone negatively about their company, it tends to shed negative light on the organization.  

Moreover, a Managing Partner of an employment law firm states that if you say that your boss is an idiot or a jerk, it is likely that they’ll not care. However, if you are giving interviews to journalists about the same, your boss will obviously care what you say about the company out in public. This is because they will find out, and it will also shed a negative light on your employer.  

Defamation Vs Disparagement: The Differences

Defamation Vs Disparagement: The Differences

You might get confused between the terms defamation and disparagement. Defamation generally means false statements that require some extent of ill-intent. Moreover, disparagement is a wider concept. Defamation generally states, “Don’t make up bad things about us just to hurt us.” On the other hand, disparagement states, “Don’t say bad things about us, even when it’s true.”  

So, if you’re someone who is planning to vent your frustration on LinkedIn, it’s better that you don’t. Because if you do so, you will be said to violate the non-disparagement clause you signed. Moreover, even if you do not intend to post anything malicious but state a true event, it will fall under disparagement.  

When Will You Be Asked to Sign a Non-Disparagement Clause Agreement?

When Will You Be Asked to Sign a Non-Disparagement Clause Agreement?

Having the presence of a non-disparagement clause in your employment contract is not an uncommon sight to see. When you are hired, the employment contract you sign usually includes a non-disparagement clause, along with a non-compete or non-solicitation agreement.  

Many human resource managers have stated that when employees are made to sign something upfront while everyone’s happy, it enables the protection of the organization. Moreover, it also allows the restriction from bad-mouthing the company if the relationship between employer and employee sours in the future.  

On the other hand, another situation where you might observe a non-disparagement clause is within a separation agreement. Similarly, it is signed when you’re fired, laid off, or leaving on bad terms with the employer.  

Many human resource managers have stated that when an employee tends to stay within the company, it is rare that they’ll talk badly about their employer or company. Moreover, it is because they fear being fired. However, the moment they leave the organization, there’s a higher chance of bad-mouthing about their company.  

To tackle this situation, you will find in many organizations that the employer includes the non-disparagement clause within the severance agreement. This means you have to sign the non-disparagement clause to get your severance payment or benefit.  

Sample Non-Disparagement Clause 

Now, you must wonder what a non-disparagement clause really looks like within an employment contract. Generally, these agreements usually provide the blueprint of the things you will not be allowed after leaving the organization. Let us look into some of the examples of non-disparagement clauses as follows:  

Sample 1: 

You agree that you will not disparage or encourage others to disparage the organization. For purposes of this agreement, the term disparage includes, without limitation, comments or statements made in any matter or medium in the press and/or the media about the organization that might adversely affect any manner of the conduct of the business of the company’s business plans or reputation of the organization.  

Sample 2: 

You agree not to disparage or denigrate the organization orally or in writing, and that neither you nor anyone acting on your behalf will publish, post, or otherwise release any material in written or electronic format, make speeches, gain interviews, or make public statements that mentioned the organization, its operations, clients, employees, products, services without the prior written consent of the organization.  

Moreover, the wording of the non-disparagement clause might vary from one organization to another. But the main message remains the same in all.  

Should You Sign a Non-Disparagement Agreement?

The decision to sign a non-disparagement agreement entirely depends on you. Employment law attorneys state that every situation requires to be effectively evaluated before making any decision.  

Before you finally sign a non-disparagement agreement, it is crucial that you consider what the offer has for you. Moreover, it is all about what you have in exchange after signing a non-disparagement clause.  

For instance, if the company is telling you to sign the non-disparagement clause along with your severance agreement, it means the organization is trying to shut up with money. Regarding such situations, it is completely your decision whether you want to sign the agreement or not.  

Moreover, if you are someone who is facing a layoff and requires the money to pay your rent and buy food to sustain yourself till you get a job, it is wise to sign a non-disparagement clause. By signing you will be ensured that your severance would be paid to you on time. Similarly, you might even want to sign the non-disparagement clause if you are willing to have some extra savings and are motivated to make use of the money in other matters. 

Exceptions When You Should Not Sign a Non-Disparagement Clause

However, there are certain situations where you should not sign a non-disparagement clause even though the company is paying you to. For instance, recently, many women have raised their voices in the #MeToo Movement. If you are someone who has been bullied, harassed or has been assaulted in the workplace, there’s no amount of money that will stop you from spreading about your organization to others to warn them of future instances.  

On the other hand, your employer might counter and agree not to say anything bad about you, either. So, it is crucial that you are asking your employer about this. Moreover, as you will be looking for another job, it is essential that your previous employer say terrible things about you that might ruin your reputation in the new workplace.  

A red flag that you must consider before you sign into a non-disparagement clause is the presence of certain clauses that are better to be left in the past. This means the contents of the clause should only require the matters that would begin to occur after the employee has signed it.  

For instance, if you’ve said something bad about your boss before signing the non-disparagement clause, you’ll not fall under scrutiny. But if you are caught bad-mouthing about your company after signing the clause, you will be held with the charge of “breach of contract.” In such a case, you’ll need an employment lawyer to rectify the matter.  

What Happens If You Break a Non-Disparagement Clause?

What Happens If You Break a Non-Disparagement Clause?

Have you ever been asked to sign a non-disparagement agreement by your employer? While the enforcement of such agreements may vary depending on your specific company and the nature of the disparagement, it’s important to approach them with caution and take them seriously. After all, a non-disparagement agreement is a legal document with potential consequences if you fail to uphold your end of the bargain. It’s always best to abide by the terms of a contract you’ve signed and assume that any violation could be enforced against you. 

If you do happen to breach the terms of a non-disparagement agreement, the consequences will likely be financial. Depending on the specific language of the agreement, you may be required to return some or all of your severance pay if non-disparagement was a condition of receiving it. Additionally, you could face damages for any harm caused by your negative comments. However, it’s important to note that proving monetary damages can be difficult for former employers if you’ve taken to social media to criticize them. 

Exceptions of Non-Disparagement Override  

Despite the potential consequences, there are certain exceptions that a non-disparagement agreement can’t override. For instance, you can’t be prevented from filing a workers’ compensation claim or receiving benefits for an injury or illness. Likewise, you’re allowed to speak freely to government agencies conducting investigations, such as the EEOC or the FDA. 

Navigating non-disparagement agreements can be tricky, and you may feel uneasy about signing one. However, by understanding what your company is asking of you and considering the potential outcomes, you can make an informed decision that protects your interests and allows you to move forward confidently. Remember, signing a non-disparagement agreement doesn’t have to be a negative experience – it can be an opportunity to leave your former employer on good terms and open the door to exciting new opportunities. 

How Long Does a Non-Disparagement Clause Last?

It is important to be aware of non-disparagement clauses, which are often included in employment contracts. These clauses are typically perpetual or indefinite, which means that they cover the period during which you work for the company as well as the time following your departure. Essentially, this means that you are agreeing not to make any negative or derogatory comments about the company, its employees, or any of its products or services, both during and after your employment with the company ends. 

It is important to note that these clauses should only impact your actions that occur after you have signed the agreement. They should not have any retrospective effect on your previous conduct. In other words, if you have already made negative comments about the company or its products or services before signing the non-disparagement clause, you should not be held responsible for those comments. 

It is crucial to understand the implications of non-disparagement clauses before signing an employment contract. If you are unsure about any aspect of the clause, it is advisable to seek legal advice to ensure that you fully understand your rights and obligations. Ultimately, signing a non-disparagement clause can have far-reaching consequences, so it is important to carefully consider whether or not you are comfortable with the terms before agreeing to them. 

Can You Refuse to Sign a Non-Disparagement Clause?

When presented with a non-disparagement clause, it is important to carefully read through the document and examine its contents. If you feel uncomfortable with any part of the agreement, you have the right to refuse to sign it. However, keep in mind that this may result in the loss of an offer. Before declining to sign, it may be helpful to speak with the hiring manager to see if any adjustments can be made to the wording or if they can provide additional clarification about the clause’s contents. 

If a non-disparagement clause is included in a severance package, you will need to weigh the benefits of severance pay against your desire to share your experience. Ultimately, you will need to decide which option is more valuable to you. 

Conclusion  

When it comes to deciding whether or not to sign a non-disparagement clause, the decision ultimately rests with you and your personal comfort level. However, it is crucial that you take the time to gather all the necessary information and fully understand the implications before making a choice. To assist you in this process, here are four key questions that you can ask yourself to help evaluate your options based on the detailed information we have covered so far. 

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