Non-Disparagement Clauses Must Go!

At the conclusion of the hip-hop musical Hamilton, the full company joins in posing the question, "Who lives, who dies, who tells your story?" As Hamilton demonstrates, stories matter. The reframing of Alexander Hamilton as an immigrant -- a "bastard, orphan, son of a whore and a Scotsman" -- who grew up to be "a hero and a scholar" and our first Secretary of the Treasury, has changed the way that many Americans view Alexander Hamilton. Lin-Manuel Miranda may even rescued Hamilton's place on the ten-dollar bill!

We lawyers and English teachers are particularly attuned to narratives, because we read, analyze and tell stories all the time. English teachers call them narratives or plots; lawyers call them facts. In each case, however, stories capture audience interest, make experiences real, and form the basis of opinions, both public and legal. One oft-repeated anecdote relates that, upon meeting Harriet Beecher Stowe, the author of Uncle Tom's Cabin, on Thanksgiving Day in 1862, President Abraham Lincoln remarked, 'So you're the little woman who wrote the book that made this great war!'" Similarly, stories of broken promises, feuds and other ill-doings form the basis of law suits and legal rulings. When told publicly, such narratives may give rise to more equitable laws.

That's why it is vitally important that we hear the stories of people who believe that they have been wronged. A list of events is not a novel. A set of statistics is not a victim. Although lawyer may recite facts and law, only the victim, on the witness stand, can fully describe the effect that an injustice has had on his or her life. While a journalist can report events, it is the stories of eye-witnesses that make those occurrences feel real. When stories are suppressed or hidden, however, no one learns the truth.

For these reasons, the non-disparagement clauses now contained in virtually every employee's separation agreement should be declared void as a matter of public policy. Such clauses, which forbid employees to speak critically of their former bosses, even if they are expressing honest opinions or the critical statements are true, prevent the telling of stories that make for public debate and, in the long run, result in better laws. Society cannot move forward, unless people can tell their stories, and do so publicly.

A recent case in point is the sexual harassment law suit, brought by a journalist, Gretchen Carlson, against Roger Ailes and Fox News. Although they are not yet proven, the details set forth in Carlson's complaint are hair-raising and indignation-inducing. Whatever you may think of Fox, no woman should endure what Carlson claims to have experienced.

Yet there may be more to that story: additional narratives that may never be told. Why not? Because, as reported on the CNN Money web site by reporter Brian Stelter, other former women staffers who may believe that they were treated illegally by Fox are forbidden by contract to either speak publicly, or confer with Carlson's attorneys regarding their experiences.

Yet shouldn't an employer be spared what may be retaliatory, untrue accusations by a former employee? Yes, an employer should be protected against vengeful, false charges -- and already is protected, under state anti-defamation laws. Yet non-disparagement clauses extend their reach far beyond such provisions, preventing employees from voicing honest criticism regarding former employers, supervisors, Boards of Directors -- even, in some cases, a former employer's outside attorneys. Moreover, employers obtain such protections by withholding severance pay and benefits until the employee agrees to sign -- a practice regarded by many as coercion. Once an employee has signed a separation agreement containing an anti-disparagement provision, barring a legal subpoena, that person's story can never be told.

The latest reports are that Fox News's parent company, 20th Century Fox, will waive the non-disparagement clauses in their former employees' separation agreements so that the former staffers can participate in an internal investigation of Carlson's complaint. The staffers will still be prevented, however, from publicly disclosing their experiences. Nor will Gretchen Carlson's attorneys automatically have access to any statements that may be made by these important potential witnesses. Unless the case is settled, those lawyers may have to embark on a long, expensive legal process to interview former Fox employees.

By insisting on non-disparagement clauses, employers are effectively "burying the bodies," including women or minorities who have experienced workplace discrimination; employees whose disabilities are not being properly accommodated; or, as is increasingly the case, older employees victimized by age discrimination, an illegal practice that is rampant in today's workplace. If such stories are not told, the objectives of the laws are thwarted; nothing changes, and the public interest is not served.

For example, many Americans believe the false narrative that racial and gender discrimination, as well as sexual harassment, are no longer workplace problems. Younger women can't figure out what Hillary Clinton and other members of their mothers' or grandmothers' generation are shouting about; isn't all that unpleasant stuff over and done with?

Well, no, it isn't. As an employment attorney, I hear stories of illegal terminations, inequitable lay-offs, bogus restructurings, unscrupulous retaliation, and other actions that violate federal and state laws. Yet unable to forgo severance pay and benefits, let alone finance a long, expensive law suit, most workers sign severance agreements that virtually always include non-disparagement clauses. Who tells these workers stories? No one. That is why you haven't heard them.

Without public discussion, we cannot improve enforcement or change the law. Nor can public pressure be brought to bear on employers who engage in illegal behavior. One law suit -- even an article on CNN's web site about a popular TV journalist -- is not sufficient to relate the complete narrative. For every story that is told, many remain buried.

The National Labor Relations Board has declared that in union shops, non-disparagement clauses are barred. That is because, the NLRB has stated, such clauses prevent the open discussions that allows workers to organize. The same is true in the public forum: non-disparagement clauses impede the discussions that could result in better laws and safer, more equitable workplaces. Congress and state legislatures, as well as the courts, should declare such clauses to be unenforceable.