How to Fight Digital Disparagement

As any manager knows, letting employees go is never easy.

The process becomes much more difficult when an angry former employee seeks to damage the company's reputation by launching a public campaign of disparaging remarks online and in the media. Left unchallenged, such a campaign can tarnish the company's image among potential investors, customers, and its own employees.

By taking proactive measures, however, a company significantly can reduce the chances of falling prey to a smear campaign.

Currently, new technology and a weak economy are encouraging a rise in workplace defamation suits. With fewer jobs available, disgruntled employees who can't find new positions are filing more defamation suits against their former employers.

At the same time, the proliferation of blogs and social media makes it easier to spread disparaging remarks about a company. While corporate managers may be inclined to let ill-advised comments by former employees on blogs go unchallenged, those comments can prove costly when potential customers or employees research the company.

A high-profile workplace defamation suit can hurt everyone's reputation. For instance, a prominent New York lawyer sued his former firm for $90 million after the firm issued a press release alleging the former partner had engaged in “extremely inappropriate personal conduct.”

In the suit, the former partner said the press release had sparked a flood of damaging rumors about the lawyer on blogs and in the legal media. The defending firm now finds itself under a very bright and unwelcome media spotlight.

Precautions and Policies

This kind of scenario can be avoided. Companies can protect their reputations by taking precautions and by actively countering campaigns that seek to damage a corporate image.

First, companies should provide employees with handbooks outlining explicit guidelines that clearly define the kind of information that cannot be discussed online or in any public forum.

These guidelines should include sanctions against spreading false and disparaging comments about the company, its culture and its competition. Companies cannot, however, bar employees from simply expressing an opinion in an online forum or elsewhere. Prohibitions that go too far are unenforceable as unreasonable intrusions into employee privacy and freedom of speech.

Companies should also require employees to sign confidentiality agreements upon hiring, and again on an annual basis. These agreements help to protect the corporate reputation by making employees more cautious about what they say about the company in public forums.

Another important preventive measure is to include non-disparagement clauses in separation agreements. These agreements work best when they are structured so that both the company and the departing employees benefit. The company gains assurances that the employee won't seek to besmirch its reputation in public, and the employee can be confident that the company won't hinder efforts to find a new job. For instance, the agreement might include provisions as to how the company will handle requests for a reference from a prospective employer.

Non-disparagement clauses should extend to all forms of communication, including e-mail, chat rooms, blogs, instant messaging and social media. Every effort should be made to ensure that the language defining “disparagement” is specific enough to remove all doubt as to whether the statements are actionable. The separation agreement should also include confidentiality provisions that specify to whom the departed employee may speak about the agreement, typically legal counsel and first-degree relatives.

To add “teeth” to the non-disparagement clause, companies should consider a liquidated damages clause that would levy a specified fine, e.g., $5,000, for each violation. Such a clause would include a stipulated judgment by which either party could go to court and seek an order recognizing that the other side has violated the agreement, thereby triggering enforcement of the specified fine.

Companies can also protect themselves by taking adequate preventive measures in their daily management of employees. Management should make it a priority to communicate clearly with employees and to provide disciplinary warnings as needed to explain what they have done wrong, why the behavior cannot be tolerated and what steps employees can take to improve.

Any employee being disciplined should know exactly which company policy has been violated. Managers should be encouraged to listen carefully to employee complaints. This is important because employees often seek alternate avenues for airing their grievances when they feel they have no other place to go.

Should preventive measures fail, and a former employee breaches a non-disparagement agreement, the company should start with detailed cease-and-desist letters and, if necessary, seek an injunction to stop the disparaging behavior.

Litigation Communications

While companies need to put preventive measures in place and take legal action when necessary, they should not ignore the impact that comments made in the public sphere can have on a corporate reputation. Former employees intent on inflicting the maximum harm on a company likely will seek the maximum publicity for their disparaging comments, often by filing suits containing damaging allegations.

For its part, the press is free to report on allegations contained in suits and often seeks out the most damning allegations to highlight. This creates a situation where a company that won't comment on a legal matter can be seen as guilty in the public eye, even though it is innocent in a court of law. Legal arguments, however, are unlikely to overcome a negative public impression created by attacks in print and online.

For this reason, companies embroiled in high-profile legal disputes with former employees should adopt a proactive litigation media strategy to counteract disparaging comments made to the press or to employees, investors and customers.

An effective litigation media effort requires expertise in both the law and media relations. This combination enables the company to respond to media queries in a timely manner, to combat misinformation wherever it may spring up and to avoid ceding control of the story by default to the opposing party.

While the temptation may be strong to simply take a “no-comment” approach during litigation, it is often counterproductive. Outside the courthouse, silence may be taken as a tacit admission of guilt. This isn't to say that a company should embark on a spin control campaign, but rather that it should work vigorously to counter misinformation and protect its reputation.

Conclusion

Current economic conditions make workplace disparagement suits and negative publicity campaigns mounted by disgruntled former employees an increased threat to a company's good name and its business relationships. By taking preventive employee-relations measures ahead of time, a company can sharply reduce this risk to its reputation.

When a legal dispute threatens to become a public issue, a company can mitigate the dangers through a focused litigation media strategy.

As any manager knows, letting employees go is never easy.

The process becomes much more difficult when an angry former employee seeks to damage the company's reputation by launching a public campaign of disparaging remarks online and in the media. Left unchallenged, such a campaign can tarnish the company's image among potential investors, customers, and its own employees.

By taking proactive measures, however, a company significantly can reduce the chances of falling prey to a smear campaign.

Currently, new technology and a weak economy are encouraging a rise in workplace defamation suits. With fewer jobs available, disgruntled employees who can't find new positions are filing more defamation suits against their former employers.

At the same time, the proliferation of blogs and social media makes it easier to spread disparaging remarks about a company. While corporate managers may be inclined to let ill-advised comments by former employees on blogs go unchallenged, those comments can prove costly when potential customers or employees research the company.

A high-profile workplace defamation suit can hurt everyone's reputation. For instance, a prominent New York lawyer sued his former firm for $90 million after the firm issued a press release alleging the former partner had engaged in “extremely inappropriate personal conduct.”

In the suit, the former partner said the press release had sparked a flood of damaging rumors about the lawyer on blogs and in the legal media. The defending firm now finds itself under a very bright and unwelcome media spotlight.

Precautions and Policies

This kind of scenario can be avoided. Companies can protect their reputations by taking precautions and by actively countering campaigns that seek to damage a corporate image.

First, companies should provide employees with handbooks outlining explicit guidelines that clearly define the kind of information that cannot be discussed online or in any public forum.

These guidelines should include sanctions against spreading false and disparaging comments about the company, its culture and its competition. Companies cannot, however, bar employees from simply expressing an opinion in an online forum or elsewhere. Prohibitions that go too far are unenforceable as unreasonable intrusions into employee privacy and freedom of speech.

Companies should also require employees to sign confidentiality agreements upon hiring, and again on an annual basis. These agreements help to protect the corporate reputation by making employees more cautious about what they say about the company in public forums.

Another important preventive measure is to include non-disparagement clauses in separation agreements. These agreements work best when they are structured so that both the company and the departing employees benefit. The company gains assurances that the employee won't seek to besmirch its reputation in public, and the employee can be confident that the company won't hinder efforts to find a new job. For instance, the agreement might include provisions as to how the company will handle requests for a reference from a prospective employer.

Non-disparagement clauses should extend to all forms of communication, including e-mail, chat rooms, blogs, instant messaging and social media. Every effort should be made to ensure that the language defining “disparagement” is specific enough to remove all doubt as to whether the statements are actionable. The separation agreement should also include confidentiality provisions that specify to whom the departed employee may speak about the agreement, typically legal counsel and first-degree relatives.

To add “teeth” to the non-disparagement clause, companies should consider a liquidated damages clause that would levy a specified fine, e.g., $5,000, for each violation. Such a clause would include a stipulated judgment by which either party could go to court and seek an order recognizing that the other side has violated the agreement, thereby triggering enforcement of the specified fine.

Companies can also protect themselves by taking adequate preventive measures in their daily management of employees. Management should make it a priority to communicate clearly with employees and to provide disciplinary warnings as needed to explain what they have done wrong, why the behavior cannot be tolerated and what steps employees can take to improve.

Any employee being disciplined should know exactly which company policy has been violated. Managers should be encouraged to listen carefully to employee complaints. This is important because employees often seek alternate avenues for airing their grievances when they feel they have no other place to go.

Should preventive measures fail, and a former employee breaches a non-disparagement agreement, the company should start with detailed cease-and-desist letters and, if necessary, seek an injunction to stop the disparaging behavior.

Litigation Communications

While companies need to put preventive measures in place and take legal action when necessary, they should not ignore the impact that comments made in the public sphere can have on a corporate reputation. Former employees intent on inflicting the maximum harm on a company likely will seek the maximum publicity for their disparaging comments, often by filing suits containing damaging allegations.

For its part, the press is free to report on allegations contained in suits and often seeks out the most damning allegations to highlight. This creates a situation where a company that won't comment on a legal matter can be seen as guilty in the public eye, even though it is innocent in a court of law. Legal arguments, however, are unlikely to overcome a negative public impression created by attacks in print and online.

For this reason, companies embroiled in high-profile legal disputes with former employees should adopt a proactive litigation media strategy to counteract disparaging comments made to the press or to employees, investors and customers.

An effective litigation media effort requires expertise in both the law and media relations. This combination enables the company to respond to media queries in a timely manner, to combat misinformation wherever it may spring up and to avoid ceding control of the story by default to the opposing party.

While the temptation may be strong to simply take a “no-comment” approach during litigation, it is often counterproductive. Outside the courthouse, silence may be taken as a tacit admission of guilt. This isn't to say that a company should embark on a spin control campaign, but rather that it should work vigorously to counter misinformation and protect its reputation.

Conclusion

Current economic conditions make workplace disparagement suits and negative publicity campaigns mounted by disgruntled former employees an increased threat to a company's good name and its business relationships. By taking preventive employee-relations measures ahead of time, a company can sharply reduce this risk to its reputation.

When a legal dispute threatens to become a public issue, a company can mitigate the dangers through a focused litigation media strategy.