We blogged about these non-disparagement clauses previously - that they can appear simple, but there are many problems that arise when an employee simply signs off on it and then can’t speak about his or her employment experience if he or she later chooses or wants to do so. Well, what about when an employee is legally required to speak about his or employment experience and he or she has signed one of these don’t-speak clauses?
This can happen if an employee is required to testify either in court, deposition or some legal forum. When you are subject to penalty of perjury (swear to tell the truth) and posed questions regarding your employment, you certainly don’t want to lie in order to not “disparage or negatively comment” about any of your former employees, management, etc. You certainly don’t want to forfeit any severance or money you collected in exchange to not disparage by testifying truthfully under penalty of perjury. So an employee should really insist when there’s a non-disparagement clause that they be allowed to testify and that testifying would not mean returning any of the money that was given in exchange for agreeing to the non-disparagement clause.
More than that, there has to be a specific carve-out enabling any employee to participate in an employment discrimination investigation or proceeding. The EEOC (Equal Employment Opportunity Commission) has made this clear in its enforcement guidelines. The EEOC has said that agreements “that attempt to bar individuals from filing a charge or assisting in a Commission investigation run afoul of the anti-retaliation provisions because they impose a penalty upon those who are entitled to engage in protected activity under one or more of the statutes enforced by the Commission.” So any non-disparagement clause has to be clear that an employee is still allowed to file a charge with, cooperate, or participate in an investigation or proceeding conducted by the EEOC, or other federal or state regulatory or law enforcement agency.
These are just some of the issues that employees need to pay attention to when they are considering to sign a severance agreement that contains a no-speak or non-disparagement clause. If you are confronted with a non-disparagement clause, it’s important to contact an employment attorney who represents employees as soon as possible to evaluate your choices: you can refuse to sign it, you can negotiate to exclude the clause from the agreement, to narrowly define and create the exceptions discussed in this blog post, to make the clause mutual, and/or you can simply sign it.