Mutual Non-Disparagement Clauses in Severance Agreements

You probably do not need/want a mutual non-disparagement clause in your severance agreement.

All clients want this, but most companies bristle at it for a fairly obvious reason – while it is fairly simple for you, a single employee, to not talk smack about a company, it is impossible for an entire company to guarantee that nobody there will ever say a bad word about you.  This is especially true of big companies.

 Mutual non-disparagement:  So where does that leave us?

 You can ask that specific people be instructed not to disparage you.  This specific group of people is usually called a “control group.”  This is usually do-able, but poses two problems.  First, whereas the people in the control group were probably once ambivalent about you, if you single them out, they will almost certainly hate you for it.  Second, it is almost impossible to enforce this – how will you know (beyond assurances from company representatives) that this was even done?  And what happens if the control group does say horrible things about you?  (a:  you might have a defamation claim). 

 Mutual non-disparagement:  You probably do not need a mutual non-disparagement – you need a neutral reference.

 What you probably really want/need is a neutral reference.  Now, if someone checks your references, the company will say “[Employee] worked for [Company] from [date] until [date] and held the position of [position] and, per company policy, this is all the information we provide.”

Mutual non-disparagement:  Happy?  Probably not.  You want a POSITIVE reference, right?

A positive reference is YOUR RESPONSIBILITY and has nothing to do with your severance.  There are 2 kinds of references: (1) background check style – which a neutral reference takes care of and (2) personal working relationship references. 

For the latter, these are totally on you.  It depends on your relationships with the people you worked with.  You should talk to any co-workers that would do this for you – just like any other employee.  This is how it works for everyone. 

Mutual non-disparagement:  Questions, comments, just want to talk to a lawyer?

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