Non-Disparagement Clause in Departure Agreement

[Anonymous95]

I live in Arizona.

I worked for a tech company and I resigned recently. I believe that I signed a non-disparagement agreement upon being employed and that the agreement was effective for the duration of my employment there. My departure agreement includes a non-disparagement agreement as well.

I left the company because I felt as though the company's actions were unethical and, at times, liable to lawsuits. I honestly don't know how I feel about signing this agreement. I might be more open to signing it if the departure pay was increased as I don't have another position lined up just yet and could use the money.

Would the agreement prevent me from leaving an honest Glassdoor review? Could I anonymously share the information about the company's practices and policies without consequences? If I do choose to sign the agreement, is there an appropriate way to negotiate a higher departure pay?

More detailed information about the non-disparagement clause can be shared if needed. It looks pretty standard to me though - it is also a mutual agreement so the company wouldn't be able to disparage me either, which could be beneficial, considering my abrupt exit.

 

[Zigner]

Why would your ethical concerns be lessened if they pay you more money?

You would need to have an attorney review the agreement that you signed. Contract ("agreement") review is beyond the scope of this forum.

 

[eerelations]

You're being paid for resigning? Wow! I know that while they're not legally obliged to, some American companies do pay severance to employees they're letting go...but pay for resigning? In my 30+ years in HR I have never heard of this.

That said, because your former employer is not legally obliged to give you any "departure pay" they are therefore allowed to assign any conditions they want to your acceptance of said "departure pay." So the intent of this agreement is legal.

Whether or not your signing the agreement would prohibit you from making honest-yet-negative statements about the company would require a review of the agreement in its entirety. As mentioned previously, an attorney can do that for you. But if this agreement is anything at all like the hundreds of severance pay agreements I've seen, signing it will prohibit you from making any statements at all about your former employer, positive, negative or otherwise.

Finally, it would be perfectly legal for you to request an increase in the "departure pay" offered to you. However, keep in mind that such a request may anger your former employer, and cause the original offer to be withdrawn. And that would be perfectly legal too.

 

[LdiJ]

You're being paid for resigning? Wow! I know that while they're not legally obliged to, some American companies do pay severance to employees they're letting go...but pay for resigning? In my 30+ years in HR I have never heard of this.

That said, because your former employer is not legally obliged to give you any "departure pay" they are therefore allowed to assign any conditions they want to your acceptance of said "departure pay." So the intent of this agreement is legal.

Whether or not your signing the agreement would prohibit you from making honest-yet-negative statements about the company would require a review of the agreement in its entirety. As mentioned previously, an attorney can do that for you. But if this agreement is anything at all like the hundreds of severance pay agreements I've seen, signing it will prohibit you from making any statements at all about your former employer, positive, negative or otherwise.

Finally, it would be perfectly legal for you to request an increase in the "departure pay" offered to you. However, keep in mind that such a request may anger your former employer, and cause the original offer to be withdrawn. And that would be perfectly legal too.

I suspect that the "departure pay" is intended to ensure that no disparaging remarks are made about the company. Therefore no agreement to no disparaging remarks, no departure pay at all. Asking for MORE departure pay is likely them say nevermind.

If they say nevermind then the OP would need to be VERY careful to make sure that any disparaging remarks could be easily proven, because I suspect that the company would go after him/her with a vengence.

 

[ALawyer]

It sounds very much like the company is making the type of payoff that someone who shall not be named made to a certain porn star to keep her from telling about her "relations" with a certain then married candidate for public office.

That said, firms that have smart counsel generally condition the payment of any severance to a departing employee to receipt of a general release from that employee plus a commitment (or re-commitment) to maintain confidentiality and not disparage the company or its officers, directors, employees and affiliates.

Some other thoughts -- you should very carefully read (and ideally have a lawyer read) the forms you already signed as many contain a continuing obligation regarding confidentiality and non-disparagement that apply not only while you are employed but afterwards. As I am not an Arizona lawyer, I don't know if Arizona has any laws that might serve to make such commitments void.

If your company is publicly traded you may be able to serve as a whistle blower and report the company's misdeeds to the U.S. Securities and Exchange Commission, and even reap a reward. Various other governmental units have similar programs. Agencies such as the SEC often are legally bound to keep the identity of whistleblowers confidential.