For some employers, a non-disparagement clause is required for each employee; So if you don`t sign it, they can withdraw their offer. You settle your case and the defendant agrees to pay you a lot of money. All that remains is to sign a “standard” settlement agreement prepared by the defendant`s lawyer. You will be redirected to page 10 and see a paragraph titled “No insult.” You see that this means that neither side will “denigrate” the other. never. You call your lawyer who tells you not to worry, that it is a general provision and that it probably does not mean anything. He`s not even sure what “insult” is, and wouldn`t that really be hard to prove anyway? Most clients, often on the advice of their legal counsel, sign these things every day. The court found that a valid contract was formed when the defendant pressed the “I agree” button on FreeLife`s website, and that the standard non-insult clause was part of that contract. It concluded somewhat surprisingly that the clause was not unscrupulous and did not exceed the defendant`s reasonable expectations. The accused therefore lost the first round. The second round, in which the content and validity of the non-disparagement clause itself were attacked, was a more likely victory. But the accused also lost the second round. Sometimes a non-disparagement clause is only part of new hiring records in a company.
But at other times, you won`t be asked to sign a non-insult clause until things get messy with layoffs, layoffs, and other ways your job could end on bad terms. In these cases, your severance pay can only be paid if you sign a non-defamation agreement. “When an employee is hired, it`s kind of implicit that you`re not going to talk about the company while you`re there because they might fire you,” Granovsky says. “But after a person leaves, they may have bad feelings for their former employer, [and] how on earth are you going to get them to resign?” he adds. “One thing employers are trying to do is include this non-insult clause in a departure agreement.” In other words, companies will make signing the non-disparage clause a condition for receiving your severance pay and/or benefits. Exception for forced truthful statements. Either party may make truthful statements about the other if required to do so by law by court order, court proceeding, or otherwise without violating the non-insult requirements in this section. Non-disparagement clauses may also apply to indirect actions, para. B example if a person who has signed a non-insult agreement encourages another person to make derogatory statements. Even statements made in subsequent lawsuits have been found in some cases to be in violation of a previous non-insult agreement (see, e.g., Antoncic v. Ontario (Community Safety and Correctional Services). But what does a non-disparagement clause really mean and what does an employee give up if they accept one? Before refusing to sign the agreement, try talking to the hiring manager.
Perhaps the wording of the agreement can be adapted or they can provide useful clarification as to what the non-denigration clause actually entails. Employers with employees in California should evaluate any ongoing or active claims in the workplace to assess how the new law could affect their potential litigation strategy before and after January 1, 2022. In a broader sense, employers should evaluate their employment, termination and settlement agreement templates and forms to ensure they are up-to-date and compliant with the law. This is a very troubling case from a lawyer`s point of view. And you should know that this is not a unique case among most state and federal courts in the country. It seems that no matter where you are, accepting a non-insult clause in a contract, as .B. a settlement agreement, which can expose you to disastrous consequences if you say something to someone that the other party could “denigrate” in any way. It could be anything. Your words don`t have to be false or defamatory or even mean. You can say or write something to anyone – to your friends or family, or on social media – and if it can be interpreted as “derogatory”, you could be in violation of your settlement agreement.
You may be sued and, depending on what is in the agreement, you may be required to refund the proceeds of the settlement and any damages that the disclosing party may be able to prove that you were caused by the insult. Even worse, under Arizona law, because the claim stems from a contract, you could be hired to pay the costs and attorneys` fees of the party who sued you. Whether or not your employer enforces their non-insult agreements depends on your company and what the insult entails. Is it likely that they will come after you because they beat them to your mother or in a private message to your best friend? Probably not. Nevertheless, as with any legal document, you should treat a non-disparagement agreement as a contract with possible consequences if you do not respect your end of contract. “I think the way everyone should behave is that when you sign a contract, you should stick to that contract and assume that if you don`t, it could be enforced against you,” Elkins says. .