I’ve seldom, if ever, negotiated a separation or settled an employment dispute for an employer without insisting that the signed agreement include a nondisparagement clause. The reasoning is simple—it’s not in a company’s best interest to have a former employee running around bad-mouthing it or trashing its reputation.
The reality, however, is that a clause in a contract is only as good as one’s ability to enforce it after it has been breached.
That’s not as easy as it once was. In Ohio Education Assn. v. Lopez, an Ohio appellate court has removed a good deal of the bite from nondisparagement clauses in separation and settlement agreements.
A fateful phone call
The facts of Lopez are straightforward. When the Ohio Education Association (OEA) asked for the resignation of Christopher A. Lopez, its assistant executive director and general counsel, it offered Lopez a severance agreement, which he accepted. The agreement containe...(register to read more)