New Jersey: Nondisparagement Clause Does Not Restrict Sharing Discrimination Experience
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APPLIES TO All Employers with Employees in NJ |
EFFECTIVE May 7, 2024 |
QUESTIONS? Contact HR On-Call |
Quick Look
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Discussion
In Savage v. Township of Neptune, the New Jersey Supreme Court said “[s]urvivors of discrimination, retaliation, and harassment now have a legal right to tell their story — a right that cannot be taken away by a settlement agreement.”
There, a settlement agreement between an employer and employee required that the parties agree not to make or cause others to make any statements “regarding the past behavior of the parties” that “would tend to disparage or impugn the reputation of any party. The parties agree that this non-disparagement provision extends to statements, written or verbal, including but not limited to, the news media, radio, television, . . . government offices or police departments or members of the public.” The employee subsequently discussed her experience on television.
The court refused to enforce the nondisparagement provision of the agreement saying that it was too broad because it covers speech that the Law Against Discrimination protects – specifically, the ability of an individual to discuss their employer’s discriminatory conduct. Even though the law had been traditionally applied to confidentiality agreements, the court extended the protection to nondisparagement provisions to the extent that they interfere with the law’s protections.
Action Items
- Have nondisparagement provisions reviewed by legal counsel for compliance.
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