Can you live by the policy “if you don’t have anything nice to say, don’t say anything at all?” If so, signing a non-disparagement clause doesn’t have to be a dealbreaker for you.
A non-disparagement clause is a legal agreement that forbids an employee from saying anything negative about the company, its clients, customers, and the experience of working there.
Basically, it means that if you ever talk badly about the company, especially in a way that hurts their reputation, the company can take legal action against you.
Non-disparagement clauses often include both verbal and written statements and media, so you’re prohibited from talking about the company negatively and writing—or tweeting, for example—anything that could make the company look bad. In a mutual non-disparagement clause, a company agrees to a similarly binding agreement; you’ll find an example of one of those below.
It’s important to note that non-disparagement clauses typically have no time limit. They encompass the time during and after you work for the company. They should, however, only apply to your actions after you sign the clause, never before.
The legal definition of disparagement is “the publication of false and injurious statements that are derogatory of another's property, business, or product.” Whether you make false claims to your work BFF or on the local news, disparagement is the same; however, it’s when your employer finds out that you’ve said something disparaging that it becomes a problem. The local news would definitely be a risk.
Disparagement is broader than defamation, which is knowingly providing false statements with ill will. You’re making something up to hurt an employer, and that’s wrong. Non-disparagement clauses bar even true statements. You can’t say anything negative about an employer, even if it’s true.
You shall not at any time hereafter disparage or portray in a negative light the Company and shall not disclose to any one any information regarding the Company which is non-public, confidential, or proprietary. The Company does not waive any right it has to protection of trade secrets or against unfair competition or disclosure of confidential information by you.
Employee agrees not to defame, disparage or demean Company in any manner whatsoever.
Executive shall not, at any time during the Term and thereafter, make statements or representations, or otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly or indirectly, disparage the Company or any of its subsidiaries or affiliates or their respective officers, directors, employees, advisors, businesses or reputations. Notwithstanding the foregoing, nothing in this Agreement shall preclude Executive from making truthful statements that are required by applicable law, regulation or legal process.
The Company and subsidiaries agree, and the Company shall use its best efforts to cause its respective executive officers and directors to agree, that they will not make or publish any statement critical of the Executive, or in any way adversely affecting or otherwise maligning the Executive’s reputation. The Executive agrees that he or she will not make or publish any statement critical of the Company, its affiliates and their respective executive officers and directors, or in any way adversely affecting or otherwise maligning the business or reputation of the Company, its affiliates and subsidiaries and their respective officers, directors and employees.
Sometimes, a non-disparagement clause is just a part of the new hire paperwork at a company. But other times, you won’t be asked to sign a non-disparagement clause until things get messy with layoffs, firings, and other ways your employment might end on bad terms. In these cases, your severance pay may only be paid if you sign a non-disparagement agreement.
For an employer, a non-disparagement clause is a kind of insurance policy to protect their company from the type of negativity a company insider could share.
For some employers, a non-disparagement clause is required for every employee; so if you don’t sign it, they could rescind their offer.
If you’re asked to sign a non-disparagement clause upon leaving under acrimonious circumstances, you could be denied severance pay if you don’t sign it.
The biggest risk of signing a non-disparagement clause is what happens if you do get caught saying something that could hurt the reputation of the company. If the company can prove your words caused them monetary loss, you could be ordered by a judge to pay damages. That means you and your bank account could be held responsible for every dollar the company claims you cost them.
Like any job, you’re going to have some days that you just need to vent about. It is very unlikely that you will be busted for ranting to your mom or whining to your bestie. But, if you are going to vent a little bit about your job, be sure to do it privately. Tweeting about your persnickety boss or uptight client is much more likely to be held against you legally.
There are a few times employees can legally disparage a company after signing a non-disparagement agreement. Examples include:
Other examples exist, but they vary by situation. Consult a lawyer to know if you can get out of yours.
Like any legal document, you should read a non-disparagement clause carefully. If anything makes you feel uncomfortable, you can refuse to sign. Hopefully that won’t result in a rescinded offer, but it is a possibility you should prepare for.
Before you flat out refuse to sign the agreement, try speaking with the hiring manager. Maybe the wording of the agreement can be adjusted or they can provide some helpful clarification about what the non-disparagement clause actually includes.
In the case of a non-disparagement clause being attached to a severance package, you have to choose what is worth more to you: severance pay or the ability to speak your truth about the experience.
You’re the only one who knows whether or not you are comfortable signing a non-disparagement clause. Just make sure to get all the information before you do or don’t sign. Based on everything we covered above, here are four questions to ask yourself to help you weigh your options.
