NLRB & CIRCUIT COURT SMACK DOWN “NON-DISPARAGEMENT CLAUSES”
Although it is rarely done in the federal government, private sector employers often impose “gag orders” on current and resigning employees in order to avoid a public airing of facts about how the company is run. (See American v SBA, 643 F.3d 330 (2011) for a federal employee example.) These are called “non-disparagement clauses” and they often force a resigning employee to choose between receiving some severance pay and exercising his/her rights under various statutes to pursue a public airing of the company’s laundry—dirty and otherwise. They can prevent the employee from even revealing evidence of criminal violations by the employer if he/she wants some severance pay or just an employment recommendation that does not doom his/her chances for another job, much less a reputation. The latest pop example of how these clauses are used as cover-up devices is the Roger Ailes-Fox Network fiasco which was allowed to fester and build because employees were required to agree to these clauses in their employment contracts and severance agreements. There are dozens of other examples where employees were prohibited from revealing evidence of financial wrong-doing, waste, abusive employee treatment, rampant discrimination, violations of law and commonly accepted morals and just paste-poor leadership. But the life of this core “cover-up” tool seems to be coming to an end, thanks most recently to the NLRB and Federal courts. Continue reading →
