As long as a Canadian court is unable to rule on the enforceability of a non-disappearance regime, the duration remains to the discretion of the parties to severance pay. From a practical point of view, it seems unlikely that an employer will be able to control the actions of a former worker indefinitely. Perhaps an employer would be motivated to monitor the communication of a former employee who has miswritten his affairs in the past. In this case, it may be worth insisting on an indeterminate non-disappearing clause. Otherwise, the employer should assess its intentions to insert a disparage clause and choose its duration accordingly. A possible red flag to be paid attention: “The non-disappearance agreement should only cover behaviour from the day of the signing. It must clearly rule out everything that has happened before – because an employee may have already torn up his employer to 15 people,” says Michael Elkins, an expert on labour and labour law and founder of MLE Law. Clarify with your employer or an employment law specialist to make sure the agreement only covers what you do after you sign it and nothing you`ve ever done, he says. In today`s #MeToo world, and with the growing rejection of harassment in the workplace, it is not far from concluding that any disparal clause on restricting freedom of expression in cases related to sexual abuse and other or harassment in the workplace is considered unreasing and unfair. The University of Michigan recognized this reality by renouncing the confidentiality clause in its comparisons with young gymnasts so they could talk openly about the abuse they suffered by Larry Nassar, a doctor at the university. This is not only a legal issue, but also a potential public relations nightmare for employers.
Natural language is significant to comment negatively on a person, place or thing. However, courts considering legal action for non-compliance with the duty to breach the clause will carefully consider the clarity and content of the clause in their decision. It is therefore recommended that an employer clearly state in its agreement the specific meaning of “disappearance.” In this way, the worker is aware of his obligations of non-disappearance. The setting of obligations during redundancy negotiations also gives the worker the opportunity to challenge conditions to which he is not disposed or to seek clarification and to promote applicability. On his face, the non-disappearing clauses look strict. “denigrating” means criticizing or insulting someone or something, or presenting them as of little value. Simply put, it means talking, doing or writing something about someone that could lead a third party to view that person negatively. In general, these agreements use a broad language that encompasses all kinds of denigration, from the IRL-Rants to the wrong mouth, which appears in writing and everything in between. Granovsky offers some examples of language that an employee might see in a no-disparage clause (you`ll find other examples in his blog): there are exceptions that a non-disparage agreement cannot succeed. According to Cheddie, an agreement cannot prevent anyone from asserting a right to worker`s compensation or from receiving benefits due to injury or illness.