contract-law common-law
What exactly do Non-Disparagement agreements cover? Can they prohibit saying anything negative about anyone who ever worked for the company?
<p>Take such a term in a work contract:</p>
<blockquote>
<p>During and after the term of this agreement, you will not make any
defamatory or disparaging statements, whether written or oral,
regarding the Company, or any of its current or former officers,
directors, stockholders, partners or employees.</p>
</blockquote>
<p>Is there some kind of implied limitation, such as it has to relate to the work? For example if an employee who signed this comments on a picture on social media that someone is wearing an ugly shirt and that person happens to be a stockholder, would this term be breached? How would the person signing it even know if a person they are making a disparaging comment about fits in one of the above categories?</p>
<p>What if it's a matter of fact, like the company was late paying it's employees (assuming this was true). What if it's a matter of opinion like &quot;I wish I didn't have to wear a tie to work&quot;. I guess if a company wishes to enforce this term they would have to prove damages to be given compensation?</p>

<blockquote>
<p>What exactly do Non-Disparagement agreements cover? Is there some kind of implied limitation, such as it has to relate to the work?</p>
</blockquote>
<p><a href="http://heimatundrecht.de/sites/default/files/dokumente/Black%27sLaw4th.pdf" rel="nofollow noreferrer">Black's Law Dictionary</a> defines <em>disparagement</em> [of Goods] as &quot;<em>A statement about a competitor's goods which is untrue or misleading and is made to influence or tends to influence the public not to buy</em>&quot;. This gives a basis for inferring the scope of disparagement of a company itself (rather than just of the goods and services it provides), and how it applies to the scenarios you outline. Not every negative statement about a company or its agents meets the definition elements of (1) competition, (2) falsehood, and (3) deterrence of [potential or actual] counterparties.</p>
<blockquote>
<p>an employee who signed this comments on a picture on social media that someone is wearing an ugly shirt and that person happens to be a stockholder</p>
</blockquote>
<p>An opinion on social media regarding someone's ugly shirt clearly fails these three elements unless the company is in the business of producing/marketing that type of shirts. Even if that is the company's business, an actual opinion is not a fact, and therefore it is not susceptible to a test of veracity.</p>
<blockquote>
<p>How would the person signing it even know if a person they are making a disparaging comment about fits in one of the above categories</p>
</blockquote>
<p>Unreasonable clauses are stricken as null and void, and in many contexts it is unreasonable to expect an employee to guess or know all of the &quot;<em>current or former officers, directors, stockholders, partners or employees</em>&quot; at the time of making his statement.</p>
<blockquote>
<p>What if it's a matter of fact, like the company was late paying it's employees (assuming this was true)</p>
</blockquote>
<p>A truthful, non-exaggerated statement about the company's belatedness is not actionable because it is not false or misleading.</p>
<blockquote>
<p>What if it's a matter of opinion like &quot;I wish I didn't have to wear a tie to work&quot;</p>
</blockquote>
<p>It is extremely unlikely that such statement of opinion harms or tends to harm the company at all. For instance, no employee would leave the company only because you don't like wearing a tie at work. Nor would your preference discourage candidates from joining the company. What could discourage them is the underlying obligation to wear a tie, not a person's opinion about that obligation.</p>

<p>Ultimately, the extent to which it applies to individuals affiliated with the company, rather than the company itself, is a matter of contract interpretation to be determined in light of the intent of the parties.</p>
<p>Reading in a requirement that there be some nexus to the company, or to something learned from interactions with the company is plausible, but not certain.</p>
<p>For example, if, three years after termination of employment you note that someone hired by the company after you left it at a private birthday party looks ugly, I doubt that a court would be willing to find you in breach of the contract.</p>
<p>It would be resolved on a case by case basis in light of all of the facts and circumstances.</p>
