Question: In exchange for a severance bonus, I agreed not to say disparaging things about my former employer. How long do I have to keep quiet about the #%@&* ?

Answer: This is an employment contract question, so we need to review the document language. But in California, several principles apply.

An employer and employee can agree in writing about post-employment conduct. The employee may get a severance bonus for not working for a competitor or discussing sensitive company data or not disparaging the old company. The agreement can take several forms, including a provision in a handbook or one-page/one-issue statement or a comprehensive employment agreement covering a variety of subjects ranging from salary, raises, termination, etc. The agreement must be in writing and signed by the person “violating” the clause. For example, in your case, if the company wished to take action, a written agreement signed by you would be required.

The above agreements are sometimes referred to as non-competition clauses. And the courts hate them. OK, OK, the appropriate legalese is that these clauses are in disfavor with the courts. The reasons for disfavor are numerous.

The employer is nearly always in the stronger position of offering additional compensation when you need it the most in return for restricting your post-employment activities. In some past cases the restrictions were so severe that the former employee was taken out of the job market… a result the courts rarely enforce.

The validity of the clauses will depend upon the relative strengths of the two parties, the compensation paid, the conduct restricted, the penalty for non-compliance and most importantly, for HOW LONG and what GEOGRAPHIC AREA? If you were paid $1,000 to never work for any competitor anywhere, the chances of enforcement are the same as San Francisco getting the winter Olympics. The courts do not want a former employer to prevent you from making a living. The employer would stand a better chance of enforcement if the restrictions were limited to a year and within a geographic radius of 200 miles.

The same principles apply to your specific question concerning disparaging remarks. How long and where? What’s the penalty? In your case, there is another element succinctly expressed by my partner, Dugan … “What the heck does disparaging mean? Can you not speak the truth? Can you not mention this employer in any context?”

The specific clause you’re referring to is generally unenforceable because the definition is simply too vague. Also there are slander and libel laws that apply to the same general topic.

In short, it would be very difficult for your former employer to enforce such a restriction. I can’t give you any more definitive advice without seeing the document.

Doug Mudford is a lawyer and partner at Barr & Mudford, with an emphasis on serious personal injury. He may be reached at Barr & Mudford, 1824 Court St., Redding, (530) 243-8008. Send questions for “That Lawyer Guy” columns to doug@ca-lawyer.com

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