Is your entire organization bound by a non-disparagement agreement?
These days, it is becoming more common for businesses to have non-disparagement provisions in separation agreements. While, in theory, these provisions may seem like a good idea because the now former employee is legally forbidden from posting negative comments regarding your business; but, in practice, these provisions can be troublesome. The basic gist behind a non-disparagement provision is that both the employer and the employee agree not throw mud on each other’s names after separation. But, if not drafted carefully, the employer may be in for more than it realizes. When such an agreement binds the “company” or “managers” or whomever else, and those individuals aren’t aware that such a provision exists, it can create problems that employees are not even aware of. Thus, if a current employee disparages the former employee, because the current employee is unaware of the non-disparagement provision in the former employee’s termination agreement, the company could have potential exposure to a lawsuit for breach of contract. These provisions must be drafted carefully so that the business is not unnecessarily exposed to liability.