Confidentiality and Non-Disparagement Agreements: Protecting Your Restaurant Against Defamation
3 Min Read By Michael Elkins
Technology has changed the landscape of the employer/employee relationship. Social media, text messaging, online training and the like have all made the interaction between employer and employee easier and more streamlined.
The technological evolution is not, however, without its drawbacks. Websites such as GlassDoor, Great Place to Work and Indeed provide a breeding ground for disgruntled employees to anonymously vent about perceived slights and alleged misbehavior by their former employers. The supposed anonymity of these sites only fuels their popularity. Employers, especially restaurants, seem to be left with no way to police rogue employees who often post false information in a malicious attempt to stick it to their “awful, sadistic” former employer.
With bad reviews seemingly only a click away, employers can feel trapped, with no way to fight back. Thankfully, there are ways for employers to stifle these keyboard tough employees.
For years employers have used confidentiality agreements to protect the release of trade-secret type of information; you know, the stuff that, if in the hands of your competitor would be devastating. Confidentiality agreements for current employees rarely contained non-disparagement clauses. Instead, the non-disparagement clause was saved for use in resolving disputes. After all, why start a relationship with the expectation of a messy divorce.
With the current technological landscape, and the proliferation of employees shaming former employers, the non-disparagement clause is a tool that can be used to dissuade former employees from venting online (or at least make them think twice before they click “post”). In conjunction with protecting confidential information, employers should have current employees also sign a non-disparagement clause. The non-disparagement clause should apply during employment and for a period of time after employment.
Okay, But How Does that Protect Against the Anonymous Review?
It doesn’t. If an employer can’t determine who wrote a bad review, then obviously there isn’t much they can do to have the review removed (other than complaining to the website hosting the review). However, determining who wrote a bad review is not too difficult. Reviews are frequently written shortly after a bad divorce. Additionally, the content of the review will likely provide clues as to the identity of the “reviewer.” Employers should routinely monitor the review sites, especially in the immediate aftermath of a messy breakup.
I Think I Know Who Slammed Us, Now What?
If you think you know the identity of the reviewer, then the first step is to scrutinize the content of the review. Frequently, reviewers will violate both the confidentiality portion (revealing protected information) and the non-disparagement portion (saying bad things) of their agreement.
In that case, the employer can send the former employee a very direct letter, reminding the former employee of their obligations under the confidentiality/non-disparagement agreement, pointing out the specific statements that violate the specific provisions of the agreement and demanding that the review is removed.
The letter should be stern, and to the point, but not hyper aggressive. After all, in the social media world, the letter too can be shared online.
Why Do I Need A Confidentiality/Non-Disparagement Agreement? Doesn’t The Law On Defamation Protect My Restaurant?
Yes and no. In most states, defamation starts with a false statement of a material fact. Matters of opinion are not defamatory. The fact is, most former employee online reviews contain the employee’s negative opinion about the employer, not affirmative false statements of fact. Since opinion is not defamation, there is limited protection under traditional defamation laws. There is, however, protection under a non-disparagement agreement. A non-disparagement agreement protects against any negative statements. In other words, it reaches much farther than relying on traditional defamation claims.
Enforcing claims under a contract (Confidentiality/Non-Disparagement Agreement) can be easier than proceeding under traditional defamation. The Agreement, like a prenuptial agreement, can set up the rules of the divorce before it happens. Moreover, it may just stop the former employee from ripping your business online.