Should we disparage non-disparagement clauses?

When Will Blythe was terminated from his job at a San Francisco digital publishing company as part of cost-cutting moves, payment of a measly two-week severance check was conditioned upon his signing an agreement not to disparage his former employer in any way. Instead of signing it, he decided to write about it in a New York Times op-ed piece:

Around the same time, a termination agreement pinged into my inbox. Much of it set forth standard-issue language resolving such matters as date of termination, the vesting of options, the release of all claims against the company, and the return of company property. . . .

What brings me up short is clause No. 12: No Disparagement. “You agree,” it reads, “that you will never make any negative or disparaging statements (orally or in writing) about the Company . . . .” If I don’t agree to this nondisparagement clause, I will not receive my severance — in this case, the equivalent of two weeks of pay. Two weeks? Must be hard times out in San Francisco, or otherwise why the dirt parachute — and by the way, is that the sort of remark I won’t be allowed to make if I sign clause No. 12.

From the standpoint of preserving free speech, Blythe offers a persuasive explanation why he declined to sign the clause. For him, it boiled down to preserving his dignity as a writer.

Common but not necessarily good

Non-disparagement clauses are common in employment separation situations, and for the most part they are legal. But that doesn’t mean they are good things. Such clauses join with the frequent practice of confidential settlements in employment litigation to reduce the amount of sunlight directed at employer practices. They make it more difficult for current employees to be aware of labor relations issues within their places of employment and for potential applicants to obtain potentially helpful information about prospective employers.

Furthermore, as the late legal scholar Thomas Emerson noted, when freedom of expression is suppressed, it typically goes underground. In the digital age, it means angry workers taking to the Internet to post anonymous comments, sometimes unleashing vitriolic language grounded in a pent-up desire to vent.

I realize that there may be practical trade-offs. If, say, a signing a non-disparagement clause brings with it a genuine severance package (as opposed to the “dirt parachute” to which Blythe brilliantly refers) and guarantees of positive job references, then perhaps the exchange is a fair one. Otherwise, the psychic cost to one’s dignity may not be worth it.

Related post

Confidential settlements in employment cases: Poof, as if nothing happened (2011)

3 responses

  1. Pingback: Settlement agreements with non-disparagement clauses | Sidebar for Plaintiffs

  2. I am a teacher, and will be retiring early instead of being terminated. There is a: Non-Disparagement. Employee does by execution hereof agree that he will not disparage any of Employer’s employees or Board of Education members. It is expressly agreed that any such disparagement by Employee shall be deemed to constitute a material breach of this Agreement.
    I looked up disparaging (defintions) and synonyms. Should I ask for a more specific meaning, or clarity?

    • Mack, I strongly recommend that you consult with your union (if applicable) and/or an employment lawyer in your state to clarify the legal meaning of disparagement under that provision, as dictionary definitions are unlikely to be applied.

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