Non-Disparagement Clauses in Employment Termination Agreements

A few days ago, I blogged here about a German employee’s national origin discrimination lawsuit against Abbott Laboratories. The company also made legal headlines for firing its American workers in order to farm out the work to cheaper labor overseas. This article describes an interesting argument advanced by some of the terminated workers: national origin discrimination for being … American!

A less juicy, but no less legally interesting, issue is whether non-disparagement clauses are desirable for public policy and other reasons. Disparagement clauses are very commonly used as a tool for preventing former employees for criticizing their former employers after the discontinuation of employment (whether voluntary or not.) “’It’s a very, very common practice,’ said Sheena R. Hamilton, an employment lawyer at Dowd Bennett in St. Louis who represents companies in workplace cases. ‘I’ve never recommended a settlement that didn’t have a clause like that.’”

So what’s the problem with these clauses? “’It is very frustrating that you can’t share your story with the public,’ said one former Abbott manager, who had worked for the company for 13 years, rising to an important supervisory position. He had prepared a 90-page manual for his foreign replacements showing how to perform every detail of his work. With a disabled child who requires medical care, he said he had to take his severance and its nondisparagement clause, since it extended his medical benefits.”

Leading members of Congress from both major parties have questioned the nondisparagement agreements, which are commonly used by corporations but can prohibit ousted workers from raising complaints about what they see as a misuse of the temporary visas known as H-1Bs for foreigners with “a body of specialized knowledge” not readily available in the American labor market. “I have heard from workers who are fearful of retaliation,” said Senator Richard Blumenthal, Democrat of Connecticut. “They are told they can say whatever they want, except they can’t say anything negative about being fired.” This raises the ugly, yet to us familiar, question of whether the American educational system is becoming so mediocre that foreigners simply have better skills than American professionals. (For full disclosure, I should note that I myself was born, raised and educated overseas with a J.D. from this country, so I see these issues from both an American and a “foreign” angle).

From a contract law point of view, the case raised an interesting debate on the AALS Contracts Law listserv. For example, are these kinds of in terrorem clauses unconscionable under § 208 of the Restatement (Second) of Contracts (which, ironically, is said to be derived from German law)? If so, wouldn’t severance packages simply be discontinued, arguably leaving employees even worse off? Is unfairness a tolerable tradeoff for the benefits of severance pay? Are these types of clauses simply thrown in for good measure on the “what can it hurt” principle as employers will almost never be able to prove damages from an alleged breach? Even recovery of the severance in restitution is, it has been noted, a game not worth the candle for the vast bulk of American employers.

Thanks to my colleagues for interesting comments. I invite them and other readers to comment more below.