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An old colleague's company has gone through a round of lay-offs.

As part of the severance agreement, they have been asked to sign a non-disparagement clause.

I know that non-disparagement is broader than libel and any negative comments, even if "true", are covered.

However, during these layoffs, a number of people found out that they had lost their jobs when they received administrative notification that they had been removed from some tool or other.

Is an unvarnished description of that happening considered disparagement? More generally, if a company does something overtly crappy and you simply state what they did without comment, are you disparaging them?

This is not a request for advice on what actions to take. I'm more interested to know if there are any established precedents as to the scope of non-disparagement clauses. Readers can then draw their own conclusions (ideally with the help of a professional).

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    "I'm more interested to know if there are any established precedents as to the scope of non-disparagement clauses." You are asking for legal advice, and for that you need to hire a lawyer, as here it's offtopic. Voting close as offtopic for that reason.
    – Tymoteusz Paul
    Jan 9, 2020 at 15:13
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    However, I absolutely recognize your prerogative to vote to close; I'm just offering my opinion on why this is no more off-topic than any of the other items under the legal tag.
    – Dancrumb
    Jan 9, 2020 at 15:18
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    You may try luck at /legal, although this may likely still be too close to legal advice there too.
    – Tymoteusz Paul
    Jan 9, 2020 at 15:19
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    Depends on your location, but I found a related question with the definition of disparagement. "Generally speaking, the plain meaning of disparagement is speaking or writing about the subject in a negative light. As such the term "disparagement" will apply to negative speech, regardless of truth. In fact, most non-disparagement clauses will include a word like "criticize."" law.stackexchange.com/questions/3771/…
    – jcmack
    Jan 9, 2020 at 15:24
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    @Dancrumb are you aware of our law sister site? That's the place to ask for precedent
    – Mawg says reinstate Monica
    Jan 10, 2020 at 6:05

2 Answers 2

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I'm more interested to know if there are any established precedents as to the scope of non-disparagement clauses.

Here are the precedents:

https://www.littler.com/publication-press/press/non-disparagement-agreements-worth-it

However, during these layoffs, a number of people found out that they had lost their jobs when they received administrative notification that they had been removed from some tool or other.

That's actually super common.

Not the notifications part, but the employee trying to login and suddenly finding out that their access has been revoked.

Logistically, it's difficult to layoff a number of people at the same time. If you don't cut off access, someone will just delete files, move files, damage files, or just copy information that they're not supposed to have.

Is an unvarnished description of that happening considered disparagement?

With that said, what is there to gain by saying that?

Do you really think others care?

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  • +1 for reminding us that almost nobody cares about a company's poor treatment of their own employees.
    – O. Jones
    Jan 10, 2020 at 16:30
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    @O.Jones, Don't get me wrong. Usually, I do care. In fact, I've recommended a number of times that former employees should post reviews on glassdoor to ward off future potential job-hunters from toxic employers. But in this case, the people got severance checks and they got their computer access disabled. I don't want to be mean and I know it sucks to be laid off that way, but even as a potential job-hunter, I really wouldn't care about that. IT has to do what it has to do. The same with HR.
    – Stephan Branczyk
    Jan 10, 2020 at 16:56
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Saying something negative, even when absolutely true and not misleading in any way, is disparaging. That's the meaning of disparagement, as opposed to libel, for example. Whether a contract that forbids disparagement is enforceable or not, that is another matter.

At one place where I worked, there were layoffs, and some employee's access card stopped working so he couldn't get into the building in the morning. It turned out his access card was exactly two years old and all cards needed to be renewed every two years, pure coincidence but obviously upsetting.

If you learn that you are laid off by your password not working anymore, that's unfortunate, but in the end just bad luck, and it doesn't make any difference actually. So if you get any severance for being laid off, which is significantly higher than what is legally required, and comes with an agreement that contains a non-disparagement clause, then you do risk all or part of the severance by complaining loudly how you learned about being laid off. You decide if it is worth it. But I personally would not risk a five digit some to let off a bit of steam.

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