On occasion, disgruntled former and current employees use various means to level criticism against, or create embarrassment, with regard to their former or current employer. Employers in turn will file law suits to stop the employee's communications. What effect do these employer lawsuits have?
The employer will be successful when the employee is subject to a nondisparagement clause in the current or former employment agreement. These clauses require both to refrain from making negative or critical statements about each other. The employer should therefore be successful enforcing the clause.
Where there is no such nondisparagement clause or agreement, the issue becomes a First Amendment Freedom of Speech issue considering whether the information being transmitted is of concern to the public. To protect the employee from harassment and to assure the employees rights, some states have enacted anti-SLAPP statutes. SLAPP (strategic lawsuit against public participation) laws provide for the dismissal of lawsuits brought to stifle the exercise of free speech regarding matters before the executive, legislative or judicial branches unless the party bringing the lawsuit shows that they are likely to prevail in their claims. Therefore, if an employee constructs a web site allegedly disseminating trade secrets or allegedly spreading lies about the company, the company can halt the communications only if they can show that true trade secrets or true defamation is involved.
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