Non-Disparagement Clauses in Settlement Agreements

When resolving employment-related claims brought by former employees, employers frequently seek to include a provision that prohibits the former employee from disparaging the employer. Non-disparagement provisions in settlement agreements can be enforceable.  However, because of the EEOC’s position that employees cannot be required to waive their rights to file a charge with the EEOC or their right to participate in a proceeding conducted by the EEOC, employers should not seek to prohibit disparagement in such a way as to suggest that an employee cannot participate or speak freely in the context of an administrative claim or proceeding.  Where a non-disparagement provision is included in an agreement with a current employee, employers also need to draft the provision to avoid violation of Section 7 the NLRA, which prohibits restrictions on employees right to engage in concerted activity (which may include negative  conversations about the employer).



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