What’s the Difference Between Disparagement and Defamation?
Disparagement means anything negative statement about someone or something. So the non-disparagement provision in your employment agreement or severance agreement applies to any and every negative statement. It does not matter if the statement is true or not, opinion or fact. If your statement makes your employer look bad, it is disparagement.
Defamation is much more specific and requires that a false statement[1] be made.[2] For example, it may be disparaging to say that your boss is a “donkey fisted idiot,” but this is a statement of opinion and therefore, not defamation. To be defamatory, the statement must be demonstrably false. For example, “my boss is a drug addict” is defamatory because it can be specifically proven as true or false.
Will My Employer Sue Me for Breach of Non-Disparagement?
“Do not post inappropriate content about your employer online. Even if you think that nobody is going to see your post or that you are anonymous. These can get you in trouble.
— ALEX GRANOVSKY
Any time you say negative things about your former employer, you take a risk—especially if such statements prove to be false—but whether you will be sued really depends on the employer.
Two Part Test: Will I Be Sued For Breach of Non-Disparagement: (1) will my former employer find out about my negative statement, and, if so (2) will it care? First of all, chances are, your former employer is not watching your every move. There is almost no way, something you accidentally blurt out at a cocktail party is going to come back to haunt you. With respect to #2 – whether your employer will care, this tends to be directly correlated to money. If what you say causes your former employer financial harm, then they are more likely to sue. If your statement, no matter how inappropriate, does not hurt the business, it probably does not make sense to sue you.
A lot of employers (as well as individuals) often make the determination that the best thing to do about comments that are negative or untruthful is to let them fade away and be forgotten. The choice to bring a lawsuit does the opposite and may cause more people to know about the statements for a longer period of time. If something is outrageously false and well-publicized, the employer could determine there is a value to suing an employee who is found to be the source of the statements in order to clear up the public record.
Sometimes, employers send scary “cease and desist” letters threatening to sue. There is an ocean of difference between threatening to sue and bringing a lawsuit. If you’ve received a cease and desist letter, threatening to sue you for breach of a non-disparagement, non-compete, or non-solicit agreement, we offer a flat-fee service specifically tailored to lawsuit avoidance.
If I Signed an Agreement With a Non-Disparagement Clause, Does This Mean I Can’t Say Anything About My Employer’s Wrongdoing?
There are specific carve-outs under the law for saying negative things in the course of legal proceedings to permit individuals to enforce their rights without fear of a libel suit.[3] On a related note, in the wage and hour context, courts do not permit confidentiality provisions in settlement agreements that would prevent other employees from learning about a settlement from which they may benefit.[4] There are also recent amendments to the New York State Human Rights Law precluding confidentiality provisions in settlement agreements (unless the employee prefers it) pertaining to sexual harassment and other types of discrimination that seek to muzzle employees who are knowledgeable about these issues. The upshot of both of these limitations is that, in the context of a legal proceeding, an employee may be able to disclose information the employer considers disparaging or defamatory.
Need Help with Non-Disparagement, Severance or Employment Agreement?
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[1] Defamation encompasses both libelous (written) and slanderous (spoken) statements.
[2] Conant v. Alto 53 LLC, 21 Misc.3d 1147(A), 2018 N.Y. Misc. LEXIS 7122,* 27 (Sup. Ct. N.Y.Co. 2008).
[3] Ehrenkranz v. 58 MHR LLC, 4444-2012, 47 Misc. 3d 1226(A), 2015 N.Y. Misc. LEXIS 1928 * 31 (Sup. Ct. Suffolk Co. 2015).
[4] Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 206 (2d Cir. 2015)