
Ask HN: Non-disparagement agreement that never expires - anonDisparage
I have worked at a company for many years that is going through a merger. I have been asked to sign a new Employment Agreement that includes a strong Non-Disparagement clause.<p>The language states that the clause applies &quot;During the Employment Period and thereafter&quot;, which seems to read as &quot;for the rest of your life&quot; to me.<p>When I brought my concerns to management, I was told this was common for the industry, and that they didn&#x27;t understand why I was &quot;asking for the right to disparage the company within a certain time frame&quot;<p>Is this normal, am I overreacting to this?
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tripletao
I've never been asked to sign a non-disparagement clause, in a couple large
companies and a few startups. I've seen a few, which were time-limited.

In a merger situation (or any other where you're already employed), passive
chicken is sometimes effective. Like, say that:

1\. You love the company and can't imagine ever "disparaging" it, in the
common English sense of the word;

2\. but you're not sure what their clause actually means legally, since you're
not a lawyer, and you are always very careful to abide by the contracts you
sign;

3\. so it really would be simpler to remove that language.

Then just keep delaying, and see what happens. They'll either revise the
contract, or forget about it entirely, or start talking about a termination
date.

~~~
anonDisparage
Thank you very much, I think this is the most sound approach forward.

Based on conversations today, they seemed unwilling to revise the contract, so
either forgetfulness or possible termination seems close in my future!

~~~
icedchai
Revise it yourself. Odds are the HR drones will never check it. Problem
solved.

Example: [http://www.adamsdrafting.com/making-sneaky-changes-to-a-
cont...](http://www.adamsdrafting.com/making-sneaky-changes-to-a-contract-
before-signing-it/)

Worse case, they notice it, you have some lulz, and you're back to where you
are now.

~~~
anonDisparage
Contract includes a clause that any modifications are invalid unless initialed
by an manager

~~~
tripletao
Then just take that clause out too, no (additional) problem.

~~~
icedchai
Even better, he just needs to change "invalid" to "valid". ;)

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trcollinson
I am not a lawyer but I went to law school and know a few things. Talk to a
lawyer and take my comments with a grain of salt. Also this only applied
within the United States.

The legal definition of disparagement is closely related to a freedom of
speech. In order to disparage, legally, you must make a statement that is
false, injurious, and derogatory. That’s actually illegal in perpetuity with
or without signing that statement. You can’t make a false, injurious,
derogatory statement about an organization.

On the other hand some companies have attempted to change the definition of
disparagement to mean something else. For example “you can’t say anything bad
about your experience at the company.” Nope, sorry, that doesn’t fit the legal
definition of disparagement. If you say something bad about your time at the
company, which is true, it’s not disparagement. It’s a right according to your
freedom of speech. And you can’t sign away that right. However, even this gets
misunderstood.

A corporation does not have to allow you to say anything you want without
repercussions. They just can only hand down repercussions that they have
access too. For example, if you were to say bad things about the company you
work for that are true, they do not have to continue to employ you. Or ever
employ you again. That is their right. But they can’t say that you can’t say
those things. They also have the right to attempt a civil action against you
for disparagement. They may win or lose.

So anyway, are you over reacting? Maybe. I doubt that any paper about
disparagement would actually change any of your rights in any way at all.

~~~
dragonwriter
I think you are confusing disparagement with defamation: disparagement is
basically saying anything negative about the company whether or not it meets
the standard for defamation.

[http://www.jaburgwilk.com/news-publications/what-is-a-non-
di...](http://www.jaburgwilk.com/news-publications/what-is-a-non-
disparagement-clause-and-why-you-may-not-want-to-sign-one)

~~~
trcollinson
This was an absolutely fabulous read! I was looking for a case like this to
try to counter my argument. The issue I have seen with quite a few cases was
that they were individuals versus individuals or individual being disparaged
by a larger corporate entity. This one spins it on its head. Very nice!

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clhodapp
Common or not, it is ridiculous to allow a company to insulate themselves
against disparagement for unknown future conduct. It would be one thing to
rule out disparaging them if it were backward-looking. You could think about
what they had done and say "yep, they haven't done anything all that bad."
However, they could do literally _anything_ in the future so it really
shouldn't be acceptable at all to give them carte blanche for arbitrary
behavior. Of course, at the end of the day it's your choice if you want to
sell some of your basic rights for this job, of course (in my opinion, though,
it shouldn't be: this should be very illegal).

~~~
tathougies
Yeah, it's insane. In my opinion, every state should void these clauses as
being against the public policy.

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orangecat
_I was told this was common for the industry_

That is not at all common, at least not for ordinary employees.

~~~
anonDisparage
To clarify, do you find that a non-disparagement clause is uncommon, or just
the unlimited time frame?

~~~
taytus
I had to sign a non-disparagement agreement (also with unlimited time frame)
when I left my latest company. I was lead developer there, not sure if the
position matters.

I signed because I really don't have anything negative to say about that
company. Your situation maybe is different.

~~~
tripletao
I hope this was in exchange for severance pay, or some other benefit? If not,
then the best option is usually to take the contract, promise to review it
carefully, and do nothing.

~~~
taytus
Yes, it was in exchange for severance pay. Thank you so much for your advice.

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dTal
Careful, your public implication that this is unreasonable may constitute
disparagement and be grounds for termination!

What happens if you don't sign? Termination? That probably makes the contract
signed under duress and invalid.

In practical terms, what are they gonna do if you "disparage" them after
you've left? Sue? Do they have to prove damages, or is there an enforced
liquidated damages clause (set amount you agree to pay)?

I would fight it gently using the method tripletao describes, but if push
comes to shove it's probably not worth taking too seriously.

IANAL

~~~
tripletao
> What happens if you don't sign? Termination? That probably makes the
> contract signed under duress and invalid.

It's complicated and varies by state; but if you're an employee at will, then
your continued employment is often sufficient consideration to make the new
contract enforceable.

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newscracker
Having been in a few large tech companies that have merged or split over the
course of time, creating the need to sign new employment agreements, I haven't
seen this at all. I have no idea how common this is and in what kinds of
companies.

But one thing I'd advice anyone is never to disparage a past employer in
public (exceptions are harassment, which is illegal in most places anyway, and
other illegal practices that one could fight in a court of law). The tech
world is quite small because of people moving around and because of networking
among people. So it's ill advised to burn bridges while or after leaving a
company, however bad they may have treated one on assigning work or on career
growth or anything else.

If you don't have serious issues with how you see the company may be going,
sign the agreement. If you have serious issues, find another job right away.
In either case, not disparaging the company is always a good idea. There are
certain things in life that one ought to just let go of and not bother about.
This is one of them, according to me.

~~~
anonDisparage
I have no intention to disparage any past employer in public for the exact
reasons that you mentioned. The whole putting it in the contract forever
though is what rubs me the wrong way

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tathougies
I would not sign, period. The clauses are likely unenforceable (in California
at least), but -- in my opinion -- any company willing to put such rubbish in
their contracts is likely to abuse their power.

That being said, if you can't afford the consequences, then I guess I'd sign
it, and start looking.

IANAL

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debacle
Don't sign any non-disparagement agreement that is not mutual!

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ApolloRising
You can try editing it and adding a year after the employment period ends.
Lawyers always ask for everything, a 1 year period usually is enough.

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switch007
If you don't have much leverage this might quickly turn in to not having a job
any more. Them stating "it's a common/normal/standard term" or feigning
surprise/ignorance to me seems the signal for that. I don't personally believe
Hanlon's razor applies in these circumstances.

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nitwit005
I haven't heard of such a provision for a tech company.

I'd suggest that if you request a change to their contract, ask that it be
limited to false or misleading statements, and cite some worry like concern
over a personal blog or similar. It's usually best to come across as having a
specific and practical concern.

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staticautomatic
I believe it's typical for such clauses to last forever. Whether or not you're
willing to sign it is an entirely personal choice. Consider whether it would
ever be genuinely advantageous for you to speak negatively about the company
in public. And also whether you can tolerate the existential oppression.

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hguhghuff
>> am I overreacting to this?

Yes. Who cares really? Do you feel you need the right to do this - no? Then
spend your time thinking about something else.

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cweagans
Personally, I won't sign _anything_ that doesn't have a termination date.
There are very few reasons to do so, IMO.

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siegel
First things first, this is not remotely common from anything I've seen and
I've reviewed a lot of employment agreements in M&A contexts.

Second, I'd be curious what they are referring to as "disparagement." Is that
defined in the agreement?

Third, I'm not sure what state you are in, but that might matter. I haven't
researched the issue and there may be case law already. But my guy instinct is
that this would violate public policy in a state like California, perhaps
depending on what "disparagement" is meant to mean.

I'll give you one reason why. California, as you might know, is very hostile
to restraints on ability to pursue a profession (most notable example - non-
compete agreements). If you cannot disparage your employer post-employment,
that may make it impossible to compete with them.

Of course, this depends on what disparagement means. Absent contract, the main
restrictions on commercial speech that "disparage" a competitor are in the
world of defamation and trade libel law (on a state level) and the Lanham
Act/unfair competition law (largely on a federal level). This is gross
oversimplification, but good enough for the moment.

Those laws generally require proof of falsity or misleading nature of the
underlying speech.

A non-disparagement clause, on the other hand, is a contractual obligation
that goes further than that. It CAN, depending on the wording, extend to
truthful speech. And it often does.

Competitors need to be able to distinguish their products and services from
each other - most notably in ways that promote their own services as "better"
than the other or by noting flaws in their competitors products and services.
This is part of healthy competition. Defamation, trade libel, and unfair
competition laws all permit this.

But it's not necessarily possible with a non-disparagement clause. And,
therefore, the ability to compete fairly is materially diminished.

I would note that even in California, there are exceptions to the public
policy ban on non-competes in the M&A context. And that might be read to
extend the public policy concerns around a non-disparagement clause. But the
contractual terms need to be narrowly tailored. It has to terminate at some
point. Perpetual restrictions are not enforceable.

TL;DR: This isn't normal. You're not overreacting.

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sjg007
Probably not enforceable..

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tytytytytytytyt
How badly do they need you?

