An employment lawyer on non-disparagement clauses

The New York Times article I cited a few days ago evoked an excellent letter from Rita Tobin, an employment lawyer, on the subject.

She points out, as I did not (didn’t think of it), that companies have always had legal protection against defamation, so it’s unnecessarily burdensome to inflict these gag orders on severed employees.

She also brings up a great point about union organizing.

An employment lawyer writes that nondisparagement clauses “should be declared unenforceable on the ground that they violate public policy.”

Source: Employee Severance Pacts – The New York Times

In fact, the letter is so damn good, here it is in its entirety:

To the Editor:

Re “Laid-Off Americans, Required to Zip Lips on Way Out, Grow Bolder” (news article, June 12):

As a lawyer who negotiates employee separation agreements, virtually all of which include nondisparagement clauses, I believe that such provisions should be declared unenforceable on the ground that they violate public policy.

Employers are already protected from defamation, by state law. The purpose of nondisparagement clauses — essentially gag provisions — is to prevent former employees from discussing with one another, the news media and their political representatives the treatment that the former employees honestly believe violates federal, state and local anti-discrimination laws or is damaging to the public interest.

Sending jobs abroad or hiring visa employees are two practices that merit public discussion. Rampant age discrimination against Americans in their 50s and 60s who are laid off and often unable to find new jobs is another. Yet we cannot fully comprehend the scope and effect of such practices because to obtain benefits and severance pay, employees are compelled, through what amounts to economic blackmail, to “shut up,” precluding public discussion and allowing employers to continue destructive policies.

Recognizing that without discussion there can be no action, the National Labor Relations Board has limited the scope of nondisparagement clauses in union shops on the theory that such restrictive clauses impede union organizing.

Surely it is important for the public to be aware of the behavior of employers throughout what has become an increasingly inequitable American workplace. Nondisparagement clauses obstruct such discussions and should be banned.

RITA C. TOBIN

Chappaqua, N.Y.

I don’t know or know of Ms. Tobin, but she sounds like a good lawyer to contact if you need one in her areas of practice.

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