Speak Nice or Else: The Evolving Law of Nondisparagement Provisions in the Workplace

Source: Anthony W. Kraus, Labor Law Journal, Vol. 70, Issue No. 2, Summer 2019
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Nondisparagement provisions, which commit one contracting party to refrain from derogatory comment about another, are familiar features in employee severance agreements and settlement agreements. They also have been commonly included in some employment contracts, typically for top executives earning substantial salaries, to prohibit post-termination recriminations from such highly compensated personnel.

More recently, such provisions also have begun to appear in employment contracts with ordinary new hires, exacting a threshold pledge of no adverse comment both during and after the relationship. The cause appears to be the emergence of social media as outlets for criticism of businesses, which both consumers and employees have exploited to publicize grievances. In response, some manufacturers and service providers have sought to gag purchasers through nondisparagement provisions in certain kinds of consumer contracts, prompting widespread protest and remedial action at both the federal and state level. Despite that reaction, some employers also have tried to adapt the same broad preemptive approach, expanding resort to such provisions in the workplace.