A non-defamation clause, as well as non-compete obligations and non-solicitation clauses, is called a “restrictive agreement”. With a non-disparagement clause, you limit yourself to criticizing the company. Complying with this clause and making sure you don`t violate it is part of the agreement between the parties: you get a job or severance pay, and the company gets your mouth on anything you perceive negative during your time in the company. The consequences of violating a non-defamation agreement are mainly of a financial nature. Depending on the language of the agreement, you may be required to reimburse all or part of your severance pay if non-insult was a condition of receiving this salary. Do you have to sign it to get the job? If signing an agreement with a non-disparagement clause is necessary to get a position, and you want that position to be urgent enough to waive your right to speak negatively about the company, then you should sign it. The Silenced No More Act extends these prohibitions to the confidentiality provisions of settlement agreements that relate to the disclosure of underlying factual information relating to any type of harassment, discrimination, or retaliation in the workplace, whether the protected characteristic is sex, age, national origin, race, or other characteristics covered by California law. Yes, non-insulting clauses are enforceable in California, but there are limits to what these clauses can cover. Of particular concern is the concealment of certain illegal acts in the workplace with unenforceable non-defamation clauses. For example, the Georgia Court of Appeals applied this principle when it upheld a decision against former employees for violating a settlement agreement that prohibited parties from “making derogatory or defamatory remarks.” To be specific, the former employees had shared information that their former employer was being “investigated” for insurance fraud and other crimes. While the statements are true, they are still derogatory and form the basis of accountability, the court said. They may also have to pay damages. However, Elkins notes that calculating damage can be difficult.
“When you go on social media and blow up your former employer, it`s really hard for the former employer to show how much it hurt them financially,” he says. For this reason, you may see a so-called lump sum clause. This defines the cost of damage per violation (so if you tweet, Facebook and Instagram will share the dirt in your old business, you`ll pay three times the set amount). Paperwork and confusing contracts are an essential part of the job in Corporate America. Perhaps no aspect of the contracts a company may require of you is more confusing than the non-insult clause. Sb 331 significantly revises this provision within FEHA. The measure amends the term “unlawful acts in the workplace” by deleting the phrase “including, but not limited to, sexual harassment”. The law further defines “unlawful acts in the workplace” as “harassment, discrimination or any other conduct that the employee has reason to believe to be unlawful”. This change is similar to the change for settlement agreements described above. It extends the previous law, which was arguably limited to complaints of sexual harassment or discrimination, to complaints that involve discrimination on any basis, including age, racial disability, etc. Here is another article on non-slur clauses with examples. The law also currently provides that its restrictions do not apply to a negotiated settlement agreement to resolve an ongoing dispute, whether it is filed before a court, administrative authority or alternative dispute resolution forum, or to resolve a complaint filed through an employer`s internal complaints process.
The law provides that the term “negotiated” means that the agreement is voluntary, intentional and informed, provides the employee with a valuable consideration, and also requires that the employee be represented by a lawyer or informed of his or her right to hire a lawyer. Will the company agree? One thing that most people don`t consider with standard non-insult clauses is that most companies don`t agree to reciprocate. In other words, they can always talk badly about you in the future if they want to. There are certain situations where an employee can legally denigrate the company after signing an agreement with a non-disparagement clause. If you need to file a workers` compensation claim because you were injured on the job due to poor company practices, you are allowed to explain the situation honestly. If you sign a non-insult agreement and then write a message on social media about how your boss is an idiot, you are violating your agreement and you can be held liable as stated in your contract. This can range from termination to payment of significant fines. To this end, SB 331 provides an example of language that, in conjunction with a general confidentiality clause, allows an “exception” to be used in any agreement between an employer and an employee as follows: “Nothing in this Agreement prevents you from disclosing information about illegal acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe, that is unlawful to discuss or disclose. There are a few points to consider: What is the offer on the table and is it worth it for them? What do you get in return? Is this part of an exit agreement where a company pays you to remain silent? It`s up to you to decide if that compensation is worth signing the deal, Cheddie says. For this reason, many organizations will include a “lump sum compensation clause,” which provides a fixed rate in case of breach of the agreement. So if you blow up your former employer on three different platforms, you`ll have to pay for each violation, in addition to paying back your severance pay.
I have over 25 years of experience representing large and small retail and corporate clients in transactions such as mergers and acquisitions, private securities offerings, commercial loans and commercial enterprises (supply contracts, manufacturing agreements, joint ventures, intellectual property licenses, etc.) . . . .