But what does a non-disappearance clause mean, and what does a worker give up by accepting? In fairness to your lawyer, most of us would agree that “disappearing” is or should be in the eye of the beholder. The word seems far too vague to live up to the traditional contractual test, to know exactly what the parties have agreed on – a “meeting of minds,” as we like to say. What is disappearing? How do you do that? How can someone convince us not to? And what about our precious right to freedom of expression in the First Amendment? These seem to be slam-dunk defenses to be sued for denigrating someone, even if you agreed not to do so. If you have settled a legal proceeding against your employer or have just settled it, you may have been asked to approve a clause called a “no disparity clause” by lawyers. These clauses exist in many different forms, but in essence they invite all workers to accept in the future, not to “untangle” their employer or former employer. In fact, some go further and also prohibit denigrating other workers who are also employed by the employer. In general, these agreements use a broad language that encompasses all kinds of denigration, from the IRL-Rants to the wrong mouth, which appears in writing and everything in between. Granovsky offers some examples of language that an employee might see in a no-disparage clause (you can find other examples on his blog): you can also expect damages. Elkins points out, however, that calculating damage can be difficult. “When you go on social media and blow up your old employer, it`s really hard for the former employer to show how it hurts them money,” he says.
That is why you can see what is called a liquidated compensation clause. This defines the cost of damage per injury (if you share dirt on Twitter, Facebook and Instagram on your former business, you pay three times the amount shown). First, the courts appreciate these FLSA agreements, which are not part of the COURT`s agreement, unless they are narrow in prohibiting defamatory statements by the parties and not truthful statements about the experience of workers challenging their cases. See z.B. Lopez v. Poko-St. Ann L.P., 175 F. Supp.3d 340 (S.D.N.Y.
2016). In addition, confidentiality provisions that would prevent workers from disclosing the underlying facts that lead to a transaction agreement or the existence or content of an agreement, “contrary to established public order,” regardless of their truth or lie. Kang Ming Sun v. Guang Jun Li, 2015 WL 6125710, at `1 (S.D.N.Y. Sept. 15, 2015). A new trend in jurisdictions that have adopted the Strategic Lawsuit Against Public Participation (SLAPP) is for defendants to assert anti-SLAPP claims as a defence of denigration. Such requests have had mixed results and appear to be turning to the question of whether the term pejorative was protected by the anti-SLAPP act. In August 2016, the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) issued guidelines on transaction agreements for whistleblowers to prohibit, restrict or prevent participation in protected activities.
B, such as general confidentiality or non-disparity clauses; Extended liquidation clauses; The requirement that a worker notify the employer before filing a government complaint; and any disclaimer that the employer has broken the law.