If you are asked to sign an employment contract, you should read it carefully before you sign it. It is important for you to look to see if the contract contains a non-disparagement clause. If it does, you might want to ask questions about it and to consult with an employment law attorney at the Swartz Swidler law firm so that you might protect yourself.
Understanding non-disparagement clauses
Non-disparagement clauses are clauses that state that you agree not to disparage the other party to the contract. While what it means to be disparaged might depend on how each person perceives what another says, non-disparagement clauses are often enforced by the courts. Non-disparagement clauses are commonly included in severance agreements when people leave companies. By signing them, the former employees are agreeing not to say anything negative about their former employers.
Courts have found that pressing an accept button on an online contract is sufficient to form a valid contract that includes a nondisparagement clause. Courts have also found that these clauses are not overly vague.
Why the First Amendment doesn’t protect you from a non-disparagement clause
The First Amendment protects you from governmental action based on your speech, but courts have held that it doesn’t apply in private settings without action by the state. When you agree to a restriction of your speech in a contract that contains a non-disparagement clause, you also have waived any free speech rights that you might otherwise have had to say what you think about your former employer.
If you agree to a nondisparagement clause, you may face consequences if you say anything that might be perceived as negative about your former employer. Your employer may file a lawsuit against you. Depending on your agreement, you might be required to pay back any money that you may have received in the settlement as well as any damages that the employer is able to prove that it suffered from your disparagement. You might also be ordered to pay your employer’s legal costs and attorney’s fees.
Non-disparagement clauses contained in employment contracts
Non-disparagement clauses that are contained in employment contracts or severance agreements may not prohibit you from filing discrimination charges with the EEOC or other government agencies. While many clauses contain written exceptions for filing discrimination charges, you should make certain that any agreement that you sign includes the exception.
Before signing a contract that contains a non-disparagement clause, make certain that you ask questions about the clause so that you can better understand it. You should also talk to an attorney at Swartz Swidler so that you might understand what the clause means. It is a good idea to ask an experienced employment lawyer to review any severance agreement or employment contract before you sign it. Your attorney may be able to negotiate terms that are more favorable to you.