The NJ Supreme Court recently held that a non-disparagement clause violates the New Jersey Law Against Discrimination (NJLAD) when it prevents an employee from discussing the details of discrimination, harassment, or retaliation claims.
Non-disparagement clauses are often used by employers to prevent employees and former employees from damaging their reputation with negative comments and typically apply to any statements, whether in-person, online, or to news media.
Under the ruling, a broadly drafted non-disparagement clause could be a violation of the NJLAD’s non-disclosure provision, which provides that that “[a] provision in any employment contract or settlement agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment…shall be deemed against public policy and unenforceable...” and this right cannot be waived in a settlement agreement.
Employers should review their current agreements, policies, and non-disparagement clauses to ensure that they are narrowly drafted so they do not conflict with NJLAD.