Non-blogging agreement

[Gonki]

What is the name of your state (only U.S. law)? NV

I had a rather unpleasant employment experience with a company headquartered in NV. Upon hire I signed something they called a "no blogging agreement". After my contract was terminated I posted a review of the employer on one of the internet sites dedicated to that purpose. Approximately a month later I received a letter from the company representative who in a harsh and threatening manner demanded that my review be taken down citing existence of the no blogging agreement.

I firmly believe that the public has a right to know what is going on with that employer. At the moment there is nothing out on the internet with any review or information about them that I can find except fawning reviews of their products which the management encourages the employees to post on social networks. What are my rights in posting a truthful review on a website designed specifically for that purpose? And what if anything can the company do to keep me from exercising my right to free speech? I took the review down in good faith irregardless of the abrasive manner in which the request was made. I feel it's my responsibility to post an unbiased, informative review.

 

[Proserpina]

What is the name of your state (only U.S. law)? NV

I had a rather unpleasant employment experience with a company headquartered in NV. Upon hire I signed something they called a "no blogging agreement". After my contract was terminated I posted a review of the employer on one of the internet sites dedicated to that purpose. Approximately a month later I received a letter from the company representative who in a harsh and threatening manner demanded that my review be taken down citing existence of the no blogging agreement.

I firmly believe that the public has a right to know what is going on with that employer. At the moment there is nothing out on the internet with any review or information about them that I can find except fawning reviews of their products which the management encourages the employees to post on social networks. What are my rights in posting a truthful review on a website designed specifically for that purpose? And what if anything can the company do to keep me from exercising my right to free speech? I took the review down in good faith irregardless of the abrasive manner in which the request was made. I feel it's my responsibility to post an unbiased, informative review.

You have every right to publish a factual account of your experiences.

The employer has every legal right to fire you as a result.

 

[Gonki]

You have every right to publish a factual account of your experiences.

The employer has every legal right to fire you as a result.

May I clarify: I posted the review after my contract was terminated.

Does the employer have a right to force me to remove my review? They are saying the the agreement is in force even after the contract is terminated and that I must remove the review to avoid further actions detrimental to my career (their choice of words).

 

[Proserpina]

May I clarify: I posted the review after my contract was terminated.

Does the employer have a right to force me to remove my review? They are saying the the agreement is in force even after the contract is terminated and that I must remove the review to avoid further actions detrimental to my career (their choice of words).

They may be loosely threatening a defamation action.

They can also give you lousy reviews (as long as they're not outright untruths).

 

[Gonki]

They may be loosely threatening a defamation action.

Is that possible? If my review is truthful how would they convince the court to sanction me? BTW the review was not one-sided, I strongly emphasize the positive sides as well.

They can also give you lousy reviews (as long as they're not outright untruths).

I am less worried about that. The reason for termination was preposterous.

 

[Proserpina]

Is that possible? If my review is truthful how would they convince the court to sanction me? BTW the review was not one-sided, I strongly emphasize the positive sides as well.

Oh sure, it's possible. While it's true (as a general rule) that truth is an absolute defense to a defamation action this doesn't stop certain people or companies filing suit anyway. The legal fees alone can bury the respondent.

I am less worried about that. The reason for termination was preposterous.

Perhaps, so if you're not worried about it, it's likely best just to shake your head, roll your eyes and move forward.

 

[quincy]

May I clarify: I posted the review after my contract was terminated.

Does the employer have a right to force me to remove my review? They are saying the the agreement is in force even after the contract is terminated and that I must remove the review to avoid further actions detrimental to my career (their choice of words).

If you are concerned about what your former employer can do about your review, have the "no blogging" agreement and your review of the employer reviewed by an attorney in your area.

The exact wording of the agreement you signed, and the exact wording of what your wrote about your employer, can determine if your employer has any legal ground to stand on. It's doubtful that the agreement can be enforced, if you no longer work for this employer.

But, as Proserpina pointed out, filing a defamation claim against you for writing a negative review of the company might not be an unrealistic action for your former employer to take. Whether or not your review could support a suit and whether or not the suit has merit, a lawsuit can still be costly to handle.

Your former employer can also provide to any of your prospective employers a less-than-positive reference (if what is communicated is true or pure opinion), which can limit your future job opportunities.

 

[Willlyjo]

If you are concerned about what your former employer can do about your review, have the "no blogging" agreement and your review of the employer reviewed by an attorney in your area.

The exact wording of the agreement you signed, and the exact wording of what your wrote about your employer, can determine if your employer has any legal ground to stand on. It's doubtful that the agreement can be enforced, if you no longer work for this employer.

But, as Proserpina pointed out, filing a defamation claim against you for writing a negative review of the company might not be an unrealistic action for your former employer to take. Whether or not your review could support a suit and whether or not the suit has merit, a lawsuit can still be costly to handle.

Your former employer can also provide to any of your prospective employers a less-than-positive reference (if what is communicated is true or pure opinion), which can limit your future job opportunities.

Generally, for an employer to file a defamation claim against a former employee, it would be considered very unrealistic. Why would an employer waste time and money filing a claim against someone who, more than likely posted a review that was factual.

Sorry, but based on the OP's post that reflects his review was factual and objective, I don't think his former employer would throw money at a claim that will surely be costly for them. Of course there may be exceptions, but much more often than not, a former employer will not do anything beyond a threatening letter. Just my opinion is all.

 

[quincy]

Generally, for an employer to file a defamation claim against a former employee, it would be considered very unrealistic. Why would an employer waste time and money filing a claim against someone who, more than likely posted a review that was factual.

Sorry, but based on the OP's post that reflects his review was factual and objective, I don't think his former employer would throw money at a claim that will surely be costly for them. Of course there may be exceptions, but much more often than not, a former employer will not do anything beyond a threatening letter. Just my opinion is all.

I would love to think you had something to base your "generally" and "more than likely" and "more often than not" statements on, Willly, but I know from your posting history that it would be FAR more unrealistic to expect that you have anything at all in the way of statistics or case law to support what you say than it would be unrealistic for an employer to file a defamation claim against an employee who posts a negative review.

Negative reviews are tricky. Very few people can write a negative review without stating or implying facts. It is difficult for most people to refrain from exaggerating and embellishing their stories - in order to grab a reader's attention, to provide more interest, to make more of an impact. Read some reviews on review sites and you will perhaps see what I mean.

And, if you read some of the many defamation cases involving negative reviews, you perhaps will see how negative reviews that state or imply false facts, or negative reviews that exaggerate or embellish to the point where a false impression is left with the reader, can be costly for the writer of such reviews.

Of course, not all negative reviews will be defamatory and not all defamatory reviews will lead to a defamation lawsuit. However, when you write about an identified person in his professional role, or you write falsehoods about a company, or there is the possibility of economic harm coming from the publication of negative comments, a suit becomes more likely.

And, in Gonki's described situation, he has already been threatened. A lawsuit already has become more of a possibility, if the review has attracted the attention of the company. Gonki could ignore the threat from the company's representative, certainly, but he has the added complication of having signed an agreement with his former employer saying he would not blog about the company.

What exactly the terms of this agreement he signed with the company are can be important. What exactly it is that he wrote in his review of the company is important. Without knowing these important facts, there is no way to say with any sort of certainty what the likelihood would be of any legal action being taken against Gonki. I recommend he find an attorney in his area for a personal review of all facts.

 

[justalayman]

The exact wording of the agreement you signed, and the exact wording of what your wrote about your employer, can determine if your employer has any legal ground to stand on. It's doubtful that the agreement can be enforced, if you no longer work for this employer.
.

why would this be any different than a non-disclosure agreement? Generally they are enforceable, yes?

So, I am thinking less of a defamation action and more of a breach of contract. Whether the employer would be due any damages would likely have to be addressed in the contract, I would think.

 

[quincy]

why would this be any different than a non-disclosure agreement? Generally they are enforceable, yes?

So, I am thinking less of a defamation action and more of a breach of contract. Whether the employer would be due any damages would likely have to be addressed in the contract, I would think.

There is the possibility of a breach of contract action. Any agreement that attempts to restrain speech may not be enforceable, however. It really depends on the wording of the agreement Gonki signed.

You can take a look at Cambridge Who's Who Publishing, Inc v Harsharan Sethi (009175/10, NYLJ 1201482619238, Sup Ct, Nassau County, Jan 25, 2011), a case heard in New York in 2011 that has a few facts similar to what Gonki presents here. The Court held that the ex-employee could blog about his former employer, despite having signed a "covenants and non-disclosure" confidentiality agreement, but he could be held liable for damages for breaching the contract.

The Court said: "The freedom of speech guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matter of public concern without previous restraint or fear of subsequent punishment (FEC v Wis Right to Life, 449, 469, 2007)."

Any defamation action Gonki's employer might consider would be separate from any contract issue.

 

[Gonki]

What saddens me is that the company in question will continue to get away with anything they do with their employees and not worry about damage to their reputation from bad reviews. Like I mentioned there are zero reviews of them that I can find while the management encourages its employees to post fawning overviews of their products on their social network accounts. At the time of hire they laid it out simple: you sign this, or no job. You try to blog about us and we will ruin you. You tell anyone a word about what goes on here - and you are history. Although it's irrelevant, their legal rep's language in the mail that was sent to me was laced with offensive jabs and insinuations about my lack of memory and organizational skills. Then they implied "further" detrimental actions while I do not know what "past" actions have been. Having my contract terminated was one of the most beneficial events in my career since I can remember.

I am not an idealist but believe that public has a right to know at least a bit or two about what that company's management is from the inside, other than employing some of the best technical talent I have ever worked with.

 

[quincy]

What saddens me is that the company in question will continue to get away with anything they do with their employees and not worry about damage to their reputation from bad reviews. Like I mentioned there are zero reviews of them that I can find while the management encourages its employees to post fawning overviews of their products on their social network accounts. At the time of hire they laid it out simple: you sign this, or no job. You try to blog about us and we will ruin you. You tell anyone a word about what goes on here - and you are history. Although it's irrelevant, their legal rep's language in the mail that was sent to me was laced with offensive jabs and insinuations about my lack of memory and organizational skills. Then they implied "further" detrimental actions while I do not know what "past" actions have been. Having my contract terminated was one of the most beneficial events in my career since I can remember.

I am not an idealist but believe that public has a right to know at least a bit or two about what that company's management is from the inside, other than employing some of the best technical talent I have ever worked with.

Then, Gonki, if you believe the public has a right to know at least a bit or two about the company's management (or if you just feel the need to talk about the company without restriction), have the agreement you signed reviewed by an attorney in your area, to see if the terms of the agreement are enforceable.

It is possible (perhaps even probable) that you can blog away about company management without losing any lawsuit filed against you, if you are careful about what you write. But violating the terms of a signed agreement you have with a company, and publishing negative (even if true) comments about the company, can still result in a lawsuit or two that you will have to defend against.

As long as you are prepared for these possible repercussions that your actions can spawn, including the very real possibility of the company publishing a bad review about you (in the form of a negative reference) which could hurt your future career opportunities, then nothing really prevents you from speaking out.

But again, a review by an attorney in your area can help you understand better what options you have and the risks of taking each option.

Good luck.

 

[You Are Guilty]

You can take a look at Cambridge Who's Who Publishing, Inc v Harsharan Sethi (009175/10, NYLJ 1201482619238, Sup Ct, Nassau County, Jan 25, 2011), a case heard in New York in 2011 that has a few facts similar to what Gonki presents here. The Court held that the ex-employee could blog about his former employer, despite having signed a "covenants and non-disclosure" confidentiality agreement, but he could be held liable for damages for breaching the contract.

The Court said: "The freedom of speech guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matter of public concern without previous restraint or fear of subsequent punishment (FEC v Wis Right to Life, 449, 469, 2007)."

Passing note, but this is not a particularly enlightening case. I think the underlying facts are sufficiently distinguished, but more importantly (more than it being an order from a trial judge), is that procedurally, it was (1) a motion to renew (2) a previously denied motion for a preliminary injunction. The burden of proof for a PI, much less one involving (potential) free speech issues, is beyond exorbitantly high, much less on a motion to renew. So overall, it really has no bearing on the ultimate outcome of the underlying breach of contract/defamation claims.

And for the record, here's the actual decision: http://decisions.courts.state.ny.us/10JD/Nassau/decisions/INDEX/INDEX_new/BUCARIA/2011FEB/009175-10.pdf

 

[quincy]

Passing note, but this is not a particularly enlightening case. I think the underlying facts are sufficiently distinguished, but more importantly (more than it being an order from a trial judge), is that procedurally, it was (1) a motion to renew (2) a previously denied motion for a preliminary injunction. The burden of proof for a PI, much less one involving (potential) free speech issues, is beyond exorbitantly high, much less on a motion to renew. So overall, it really has no bearing on the ultimate outcome of the underlying breach of contract/defamation claims.

And for the record, here's the actual decision: http://decisions.courts.state.ny.us/10JD/Nassau/decisions/INDEX/INDEX_new/BUCARIA/2011FEB/009175-10.pdf

Thanks for providing the link, YAG.

I knew the case wasn't especially enlightening - especially for Gonki who resides in Nevada and not New York. But, hey, my research will improve when the pay here does.