You’re busily filling out your new employee paperwork at your amazing new job. The HR staffer who is walking you through the process hands you something that you’ve never seen before. It’s a non-disparagement agreement, choke-full of legalese.
What does a non-disparagement clause in your work contract even mean? Should you even sign it? What happens if you go against it or refuse to sign it? We provide answers to these questions and more in this post!
What is a Non-Disparagement Clause?
A non-disparagement clause states that you will not say negative things about the company that hires you, its leadership, products, or services. These clauses generally cover all forms of communication — spoken, written, in-person or online. Non-disparagement clauses are generally written to prevent disgruntled workers and ex-workers from making negative statements about the company.
In simple terms, a non-disparagement contract clause prohibits you:
- Writing and sharing any negative reviews online, in-person, or in writing
- Advising people you know that the company mistreats employees
- Giving any negative statements or commentary to the media
You would also be forbidden from saying negative things about the employer in other job interviews or giving poor ratings on Glassdoor or other similar sites. You would even be forbidden from making disparaging remarks on your own social media pages.
Companies may be driven to implement non-disparagement agreements for several reasons. Some may be influenced by the anti-work movement and the Great Resignation (and the wave of rage-quitting). There has been a recent upswing in workers calling out companies for draconian policies and poor work environments.
That being said: non-disparagement clauses are being challenged by the legislators. For example, in California, effective 2022, businesses will not be able to include non-disclosure or non-disparagement clauses without meeting certain conditions. Employees must be able to discuss and disclose any information they have about unlawful acts in the workplace such as discrimination, safety violations, harassment, or other legal things bosses can’t do.
Non-Disparagement Clause Examples
To provide you with extra context, here are several examples of non-disparagement clauses.
“You agree that you will not make disparaging or denigrating statements about the company orally or in writing. Further, you and anyone acting on your behalf will refrain from publishing or posting materials in any format, making public statements that mention the company, giving speeches, or providing media interviews that mention the company or its leadership in any way without the expressed written consent.”
“By signing the agreement, you affirm that you will not make negative statements about the company, its leaders, or its products. This includes but is not limited to making negative or disparaging statements on social media, leaving negative reviews online, making negative statements to other businesses, and advising any person or entity against doing business with the company.”
“You agree that you will not make disparaging statements about the company during or after your term of employment. This includes any derogatory statements on any forum.”
Non-disparagement clauses may vary in length and content as some companies choose to write their own while others will have an attorney draft the clause for them.
Also, the wording of your non-disparagement clause could determine whether it is enforceable or not. However, you should never make assumptions. Unless an attorney advises you otherwise, you should assume that anything you sign is valid and binding.
Non-Disparagement Clause vs Non-Disclosure Agreement: What Are The Differences?
Don’t confuse a non-disparagement clause with a non-disclosure agreement (NDA). They are two different things. An NDA prevents an employee or ex-employee from disclosing information about the company, its operations, policies, leadership, business relationships, etc. This covers both positive and negative disclosures. These are intended to prevent company secrets from being disclosed or having customer relationships compromised.
3 Things to Consider Before Signing a Work Contract With a Non-Disparagement Clause
No matter how tempting the job offer looks, don’t sign any paperwork until you are fully clear on the non-disparagement clause terms.
To make a weighted decision, ask these three questions first. Then verify the information you are given with a legal professional.
Is The Clause Reciprocal?
In some cases, a company will agree to make the non-disparagment clause reciprocal. This would legally prevent them from making negative statements about you, even after you leave the company. If you want to ensure they can’t badmouth you to future employers, this could be beneficial to you.
Will it Affect Your Severance Pay?
In addition to being asked to sign a non-disparagement clause when you are hired, you may be asked to sign one if you are fired or laid off. If that is the case, ask if this will impact any severance pay you might receive. If it does, you may need to balance your desire to disclose negative information with your desire to receive your severance package.
Do You Have a Bad Feeling About The Company?
Sadly, non-disparagement clauses are put into place to hide unsafe practices, discrimination, harassment, illegal behavior, gaslighting, or toxic work culture. If you feel uneasy about the company, or have heard negative feedback, be careful! Signing the agreement could stop you from speaking out against abuses.
This article is intended to be informative and provides some basic guidelines on how to approach non-disparagement agreements if you are ever extended one by an employer. It is not in any way a substitute for legal advice. If you are unsure of the veracity or meaning of a non-disparagement agreement, please run it by an attorney before you sign anything.