Employers often use contractual provisions to prohibit employees from disclosing information about discrimination and harassment claims. Non-disclosure clauses can bar employees from revealing information about legal disputes. Non-disparagement provisions often have a much broader scope, prohibiting negative statements about the other party. These provisions may prevent employees from warning others about their experiences. A New Jersey employment law enacted in 2019, known as the “#MeToo law,” bans non-disclosure agreements in employment contracts and settlements involving harassment, discrimination, or retaliation claims. In May 2024, the New Jersey Supreme Court ruled that non-disparagement agreements also violate this law.
New Jersey law does not specifically define a “non-disparagement agreement.” The New Jersey Supreme Court relied on Black’s Law Dictionary, which defines it as “an agreement…that prohibits criticism by one party on the other.” Non-disparagement agreements might specifically prohibit “defamatory” information, which by definition means that information is untrue. They may also use more generic terms like “harmful to the parties’ business” or “harmful to their business or personal reputation.” Clauses that use this kind of language can bar people from making truthful statements that describe harmful experiences.
The New Jersey Legislature enacted the #MeToo law in the wake of the movement that seeks, in part, to raise awareness of sexual harassment and abuse in workplaces around the world. The law bans non-disclosure agreements in employment contracts and settlement agreements that would prevent people from speaking out about certain violations of antidiscrimination laws. The New Jersey Supreme Court states in its ruling that the law “was enacted in the wake of the ‘#MeToo’ movement to protect individuals who suffer sexual harassment, retaliation, and discrimination from being silenced by settlement agreements and employment contracts.”
The plaintiff in the recent New Jersey Supreme Court decision worked as a police officer. She filed a lawsuit against the police department, the township, and others in 2013 alleging sexual harassment, sex discrimination, and retaliation under the New Jersey Law Against Discrimination (LAD). The parties settled in 2014, but the plaintiff sued again in 2016, claiming that the defendants had violated the settlement agreement and “intensified” their unlawful acts. They settled the second lawsuit in 2020.
The 2020 settlement agreement included a non-disparagement clause that barred all parties from making statements “regarding the past behavior of the parties” that might “disparage or impugn the reputation of any party.” The plaintiff participated in a television interview about the case later that year in which she discussed her allegations in both lawsuits. The defendants went back to court, claiming she had violated the non-disparagement agreement.
The trial court ruled against the plaintiff or her claim that the #MeToo law barred the non-disparagement clause. It held that the #MeToo law only barred non-disclosure agreements. The Appellate Division affirmed this part of the trial court’s ruling but also held that the plaintiff did not violate the agreement.
The New Jersey Supreme Court overturned these rulings. It held that the non-disparagement clause, as written, “would bar individuals from describing an employer’s discriminatory conduct,” which is “speech the LAD protects.”
If your employer has engaged in unlawful workplace practices that harm you, the Resnick Law Group’s team of skilled and experienced employment attorneys can help you assert your rights under federal and state law. We advocate for workers and job seekers in New Jersey and New York. Please contact us today at 973-781-1204, at 646-867-7997, or online to schedule a confidential consultation with a member of our team.