A possible red flag to be paid attention: “The non-disappearance agreement should only cover behaviour from the day of the signing. It must clearly rule out everything that has happened before – because an employee may have already torn up his employer to 15 people,” says Michael Elkins, an expert on labour and labour law and founder of MLE Law. Clarify with your employer or an employment law specialist to make sure the agreement only covers what you do after you sign it and nothing you`ve ever done, he says. The challenge was dismissed mainly for technical reasons – the EEOC never wanted to settle the case before the complaint was filed – but the EEOC`s contempt for these agreements is obvious. In addition, like overly broad confidentiality agreements, non-disappearing clauses may be contrary to recent state laws prohibiting employers from introducing confidentiality clauses preventing workers from publicly discussing sexual harassment and other rights against the employer. An employer could also lose its ability to deduct the costs of its federal taxes related to the payment of sexual harassment fees if the comparison is subject to a “non-disclosure agreement,” which is likely a non-disappearance clause. A mutual non-disappearance clause, in which “the company undertakes not to denigrate the employee,” is almost impossible for the company to honour. “Business” is a broad term that encompasses many people, including officers, directors, employees, agents, etc. Thus, the “reciprocal” non-disappearance clause could be the promise of the company that any current and future public servant, director, employee, etc., will not denigrate the former employee. This is an unreasonable obligation and should be avoided! Unfortunately, some authorization agreements also use the same defined term (“company”) for “released parties”: for example, z.B. also OSHA and EEOC came into play. In 2014, EEOC sued CVS Pharmacy and challenged a discriminatory transaction agreement, which included prohibiting the employee from improperly using or disclosing CVS`s confidential information and from “making all statements that denigrate the transaction or reputation” of CVS (but stated that the agreement does not prohibit the employee from “making truthful statements or disclosures that are required by the legislation). , regulation or legal proceedings” or “request or receive confidential legal advice.” EEOC vs CVS Pharmacy, 809 F.3d 335 (7th cir 2015).
Practical tip: Be careful to use another defined term for (i) the party that agrees to pay severance pay and (ii) the released parties. Finally, as professional lawyers, we warn all our clients that it will not serve their interests to say something negative about their employers, either before or after signing agreements. And on the employer side, the modern practice of staff is to refuse the disclosure of details about a current or former employee with the exception of the employee`s title and employment data (and, as a general rule, in the case of an ex-employee looking for a new job, the employer will not voluntarily provide the amount of the former employee`s remuneration , but will confirm or deny the accuracy of the salary information. the former employee made available to the potential new employer). The analogy may be imperfect, but the courts that consider these claims in the employment context have had mixed results. In the Ohio Educ. Ass`n. Lopez, No.
09AP-1165 (Ohio App. October 19, 2010), an employee called his former employer`s executive director a “mucus bag.” The court found that this comment was not contrary to a non-disappearance agreement and described the comment as a “small character of speech”. Please feel free to contact the company with questions regarding this article or severance and release agreements. It is important to note that denigration differs from defamation.