Nondisparagement agreements and similar clauses are on the rise, now that employers can monitor social media and other digital communications.
Q: My son, with seven years of management experience at a nonprofit, recently lost his job, along with a dozen other managers, as part of a reorganization. Each was given a severance package — but all had to sign a multipage document requiring them not to speak negatively about the organization, its leadership or their experiences while employed there.
Does this mean that if he gets together over dinner with his friends who lost their jobs, they can’t speak about the company that kicked them out? Does it prevent him from talking to his relatives or me about the terrible time he had while employed there? I can see his former employer prohibiting him from speaking to the media about the organization’s problems — but preventing him from speaking to friends and relatives is going too far, is it not?
A: Here is yet another corner of the working world that’s being revised to meet the realities of the social media era. For context, I spoke to Orly Lobel, a professor of employment and labor law at the University of San Diego School of Law.
Nondisparagement agreements and similar clauses are on the rise, she says, now that employers can monitor social media and other digital communications. By and large such agreements are perfectly legal: While in some circumstances free-speech issues may come into play (think of a whistleblower acting in the broad public interest), employers are generally seen as having a legitimate business interest in protecting their reputations.
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“This is all within the bounds of reasonableness,” Lobel adds.
So it’s not really about preventing an ex-employee from answering questions at Thanksgiving. But it does apply to the murkier realm of, say, Facebook or a blog. That kind of venue may feel personal and nonpublic, but as we keep learning over and over, there’s no guarantee that what happens online stays online. (And even if it does, it can easily spill over into the de facto public realm.)
Perhaps a long legal document seems like overkill, but the law is a blunt instrument. And there may actually be something close to a silver lining here. Let’s face it, your son has clearly already spoken critically about the organization to his family, and maybe it’s just as well that there’s a tangible deterrent to keeping him from doing so in other forums, particularly digital ones. Losing a job is always a tough experience, and a little venting is human nature. But while emotions fade, online traces of them can stick around longer than we’d like.
Submit questions to Rob Walker at firstname.lastname@example.org.