Learn more about non-disparagement clauses and what accepting one means for you.
Question
I was fired a few months back. My employer said I was fired for performance problems; I think my employer held me to a higher standard than other employees because I’m a woman in a mostly male profession. I spoke to a lawyer, and he negotiated a severance agreement with my employer. They are giving me six months’ salary and continued benefits in exchange for my agreement not to sue for discrimination. I just looked over the final agreement, and it includes a clause saying that I agree not to “disparage or make any negative statements, written or oral,” about my former employer. What does this mean? Do I have to agree to it?
Answer
Lawyers refer to the language you describe as a “non-disparagement” clause. These clauses are often included in severance and settlement agreements, in which a former employee gives up the right to sue the employer in exchange for compensation.
What “disparage” means is open to interpretation. The dictionary says it means to belittle or speak lightly of something or someone; to act as if that thing or person is unimportant. In legal terms, disparagement usually refers to making negative statements about another person. But what counts as “negative”? How bad does a statement have to be to trigger a non-disparagement clause? What if you simply give your opinion (“I never liked working there”) or state true facts (“They fired me for poor performance, even though I never received a written warning”)?
The answers to these questions depend on how your state — and your local courts and judges — defines the term. Some might be strict, interpreting these agreements to prohibit only false statements, or statements that cause real damage to the other party. Others might be more lenient. Your lawyer can explain exactly what you’re agreeing to, if you sign the contract.
Unless you and your former employer had a firm agreement to all the terms of the contract, then they tried to slip this final clause in at the last minute, this is all part of the negotiation. They are free to propose the terms they want; you are free to accept or reject them. If that non-disparagement clause is really important to your former employer, refusing to agree to it might cause the whole deal to fall apart.
As to whether you should sign the agreement, that all depends on how important your right to speak freely is to you. Some former employees feel very strongly that they must retain the right to talk about their experience, including the good, the bad, and the ugly. One former employee I knew wanted to write a book about getting fired, much of which would have been disparaging. In that situation, it was worth walking away from the deal to keep that right. Many former employees won’t mind signing a non-disparagement clause: Their most sincere wish is to put the whole experience behind them, not to keep talking about it.
Only you can decide where you fall on this spectrum. If you are willing to sign a non-disparagement clause, you might ask your lawyer to negotiate more money. After all, you agreed to your deal without knowing it would come with this string attached. If your former employer really wants to settle your dispute, and really wants you to zip your lips about it, you might be able to get some more money for your silence. Your lawyer can tell you whether this makes sense in your situation.