Can Employment Contracts Include Non-Disparagement Agreements?

 Posted on July 28, 2022 in Litigation

Employment contracts will contain a number of terms that affect both the employer and the employee. In many cases, an employer will want to include terms that protect their interests and prevent employees or former employees from taking actions that could harm the company. These may include non-compete agreements that prevent a person from engaging in unfair competitive activities and non-disclosure agreements that prevent employees from releasing confidential information. In some cases, an employer may also ask employees to sign non-disparagement agreements meant to protect a company’s reputation. By understanding the purpose of these agreements and the restrictions they can put in place, employers and employees can ensure that they are properly protected.

What Is a Non-Disparagement Agreement?

Disparagement may include any statements by an employee or former employee that could harm their employer's reputation. These may include both false statements about a company and factual statements about issues such as workplace policies, the actions of co-workers or supervisors, or the quality of a company’s products or services. Notably, disparagement is different from defamation, which involves false or misleading statements that are meant to cause harm to a company.

A non-disparagement agreement may be included in an employment contract or severance agreement, and it may prohibit a person from making negative statements about their current or former employer. These restrictions may apply to any forms of communication, including posting information on social media, talking to news reporters, or having private discussions with friends, co-workers, or acquaintances. However, a non-disparagement agreement cannot restrict a person’s ability to file a workers’ compensation claim, and an employee will be allowed to speak to investigators from government agencies who are looking into alleged violations of laws or regulations.

As with other types of contractual agreements, a person must be given consideration, or something of value, in return for agreeing to a non-disparagement clause. If these clauses are included in an employment contract, the consideration provided will include the wages and benefits that an employee receives. If a non-disparagement clause is included in a severance agreement, the severance pay the person receives will usually be sufficient consideration. In many cases, non-disparagement agreements are mutual, meaning that both the employer and employee will be prohibited from making negative statements about each other.

Since non-disparagement agreements are considered to be “restrictive covenants,” Florida law states that they must be necessary to protect a company’s legitimate business interests. They may also be subject to time restrictions, meaning that they will usually only apply for a limited period of time rather than remaining in effect indefinitely. If a party is accused of violating a non-disparagement agreement, they may be required to pay damages as detailed in the contract. For example, a former employee who violates an agreement may be required to return the severance pay they received, or they may be ordered to pay damages for the losses their former employer experienced because of the disparagement.

Contact Our Broward County Non-Disparagement Agreement Lawyer

Whether you are an employer or employee who needs to address non-disparagement agreements or other restrictive covenants, The Elliot Legal Group, P.A. can help you understand your rights and options. To learn how we can help you draft and negotiate workable agreements or address contract violations, contact our Dania Beach employment contract attorney at 754-332-2101.

Sources:

https://www.themuse.com/advice/non-disparagement-clause-agreement-sample

https://www.inhersight.com/blog/workplace-rights/non-disparagement-clause

http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=0500-0599/0542/Sections/0542.335.html