Have you ever been asked to sign a non-disparagement agreement as part of your employment contract?
Non-disparagement clauses specifically prohibit you from saying anything negative about the company that you work for. They can be found in employment agreements, separation agreements, and even settlement agreements. But an appeal heard by New Jersey’s Supreme Court may establish an important precedent within the state, as a former employee and her employer argue about whether a 2019 state law barring agreements that prohibit workers from discussing claims of discrimination, retaliation, or harassment also precludes non-disparagement clauses.
The case involves Christine Savage, who in 2014 filed a claim alleging sexual misconduct and harassment by her male supervisors in the Neptune Township Police Department. She received $330,000 as part of a settlement of that case and later filed a discrimination lawsuit that settled out of court in 2020. The second case saw her receive $248,560 in damages and other financial benefits and included a non-disparagement agreement barring statements about past behaviors that might damage either party’s reputation.
Shortly after the second settlement agreement was reached, Ms. Savage was interviewed by NBC New York, and during that interview, she said that the Neptune Township Police Department remained problematic. Her exact words were, “It has not changed, not for a minute. It’s not gonna’ change. It’s the good ol’ boy system. They don’t want women there.”
The police department subsequently filed a suit arguing that her comments to the news station had violated their non-disparagement agreement. Ms. Savage countered that assertion by pointing to New Jersey’s 2019 ban on the use of non-disclosure agreements in cases involving workplace harassment and retaliation.
In the original case, a trial court agreed with the police department that the statute does not extend to non-disparagement agreements, and ruled that Savage had violated the terms of their settlement agreement, but Ms. Savage appealed that decision. In 2022, the appellate court agreed that including a non-disparagement clause was valid, but also ruled that her interview had not violated the terms of the settlement agreement because her comments had referred to the present and future rather than the past behaviors specified within the contract’s language.
Both sides made arguments to the New Jersey Supreme Court in January, with the police department again arguing that the settlement’s terms were proper and that the 2019 law did not apply because it made no mention of non-disparagement agreements. The justices hearing the case appeared to question that theory, noting that the use of the phrase “non-disclosure provision” could be viewed as in keeping with the language of the New Jersey Law Against Discrimination which encompassed “any provision within an employment contract or settlement agreement that had the purpose or effect of concealing details related to a claim of discrimination, retaliation, or harassment.” Pointing out the inherent problem with leaving non-disparagement out of the law’s intention, Superior Court Justice Fabiana Pierre-Louis asked, “How would a plaintiff discuss the details of their discrimination claim, which inherently involves accusing someone of discriminatory conduct, without disparaging them?”
The decision in favor of Ms. Savage would represent a significant clarification of the New Jersey Law Against Discrimination and could effectively limit the use of non-disparagement agreements in the future.
If you have been discriminated against or harassed in the workplace and you believe that your rights under the New Jersey Law Against Discrimination have been violated, our attorneys are here to help. Contact us today to set up a time for us to discuss your situation.