Jack Horner

Non-disparagement Clauses Say a Lot

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Being a child of divorce teaches you that there are two sides to every story.  Amicable partings are rare.  The swirling vitriol gives both sides some cover, often just until battle fatigue prevails and then settlement talks begin.

The parties go their separate ways, somewhat unsatisfied and slightly indignant.  And for years to come, they will restate their case over coffee and cocktails on soccer sidelines and at holiday dinners.

Such is disparagement, circa 2006.

Now enter Facebook and Twitter.  An online community can come together and unite against your oafishness, and the next thing you know Demi Moore is tweeting about you.

Try explaining to your new eHarmony friend why Google results 1-10 of about 478,000 say you’re a dirt bag.  Go adopt a dozen cats, because you’re going to be single for a long time.

Now put that in a business context, using as an example a local hospital.  Its nurses and other health professionals walked off the job March 31 in a good old-fashioned labor dispute.  At issue besides the usual—pay raises, health benefits, etc.—is something new, what workers are calling a “gag clause.”

In point of fact, it’s a non-disparagement clause, an age-old legal tactic designed to discourage adversaries from bashing each other publicly.  It’s legalese that’s appearing in contracts more and more.

A point of disclosure, I run a public relations agency.  For more than two decades, I’ve represented management, never labor, whenever there’s been a dispute.  I’m particularly successful doing so, I think, because as a child of divorce, I see and appreciate the merits of both sides.  In labor disputes as in life, the better the communications counsel, the faster the resolution.

But here we have employees who adamantly want to preserve their freedom to advocate for patients—I might even suggest their duty—without fear of reprisal.

On the other side, we have a hospital whose mission and business model is based on delivering the highest quality of patient care.

Psst.  Guys, you want the same thing.

More precisely, this is about what each side doesn’t want.  Nurses don’t want their employer dictating what they can and cannot say about their workplace.  Guess what, no employee wants that, and it’s an unreasonable suggestion.

And hospital management doesn’t want to Google its brand and find thousands of posts insulting their hospital or its leadership.  No business wants that, and this particular health system runs a great hospital.  Or the nurses wouldn’t work there in the first place.

Both positions are entirely understandable, especially nowadays.

The fact that a non-disparagement clause is a deal-breaker in a labor dispute says a lot about where we are as a society, particularly our media—and social media—culture.  Doing good and getting it right doesn’t earn nearly the attention of misdeeds or mistakes.  And the backlash, which thanks to the Internet can echo for all eternity, can bring individuals and institutions to their knees.

Who wins when the reputations of organizations are sullied beyond repair?  Maybe their competitors.  Certainly not their employees.

I subscribe to my grandmother’s rule:  When you throw a little, you get a little on ya.

There are economic forces at work today that continue to create struggle and hardship for families and companies in every town at every level.  Must we exacerbate that condition by disparaging and criticizing anyone and everything just because we can?  What’s become of restraint?

From the president of the United States to the parking attendant who dinged your car; from the reality star who can’t dance to the grocery clerk who puts your bread on the bottom; from the company that signs your paycheck to the people who work there … a little dignity and respect, please.

For this recession to end, employers and employees need to get back on the same team.

By no means am I suggesting that we should perpetually agree or never question.  Rather, I’m worried that our disparaging culture in society and in the workplace, clause or no clause, is reaching a fevered pitch.

Such rancor isn’t getting us anywhere, and worse, it’s distracting us from recreating the atmosphere of innovation that made our communities, our companies and our country great.

Employers should delete the non-disparagement clause, because employees should remove the need for it.

Replace that paragraph with a collaborative statement that reads, all parties will support each other publicly and unequivocally in pursuing a shared mission.

That’s a contract we should all sign.

Written by jackhorner on March 31st, 2010 at 4:32 pm