Harry and Meghan: A Case for Nondisparagement Agreements

Harry and Meghan are spilling the tea again! Unless you have been hiding under a rock or have been blissfully disconnected from celebrity news, you have likely been bombarded with wall-to-wall coverage of bombshell after bombshell about the British royal family from Prince Harry, the Duke of Sussex, and Meghan, the Duchess of Sussex. Here are some brief highlights of their departure from royal life and the fallout:

  • January 20, 2020: Harry and Meghan announce their intention to step back as senior members of the royal family and to split their time between North America and the United Kingdom.
  • March 2020: The couple move to California.
  • February 19, 2021: Harry and Meghan confirm they will not be returning to royal duties.
  • March 7, 2021: CBS airs a television special, hosted by Oprah Winfrey, Oprah with Megan and Harry. In the special, the couple detail, among other things, Meghan’s mental health struggles, abandonment by the royal family, the lack of support from the family (including personal security), insensitive comments about their future children’s skin color, and Harry’s estrangement from his brother and father.
  • December 8, 2022: Netflix drops the first three episodes of their docuseries, Harry & Meghan. The docuseries repeats many of the same themes from their Oprah interview. It includes revelations related to the couple’s safety concerns after their personal security was removed, the royal family’s jealously of their popularity, and their opinions on the role race played in their treatment by the royal family.
  • January 8, 2023: CBS airs Harry’s interview with Anderson Cooper on 60 Minutes. He revealed his feelings about the royal family’s unconscious bias, the family’s complicity in Meghan’s pain and suffering, and his exclusion from the family’s travel plans just before Queen Elizabeth II’s death.
  • January 10, 2023: Harry releases his memoir, Spare. It instantly becomes the fastest-selling nonfiction book of all time, selling 1.4 million copies on day 1. The following are among the countless tabloid-fodder-worthy stories contained in the memoir: Prince William assaulting Harry, Camilla, Queen Consort, leaking stories about Harry and William, and Harry’s brother and sister-in-law encouraging him to wear the infamous Nazi costume to a party in 2005.

Because the couple’s press tour is far from over, we will just have to wait and see how this saga continues to unfold.

As if we didn’t already know, it has become abundantly clear that this is no ordinary family! The royal family, aka the firm, functions much more like a corporation than the average family. For example, average families typically do not include multiple press offices and formal resignations. (Who knew that was an option?!?) With that structure comes the inevitable headache of handling the fallout of departing “employees’” negative feelings and comments about the corporation. Luckily, most employers do not have to worry about former employees’ giving globally televised interviews with Oprah or Anderson Cooper, creating documentaries, or writing bestselling memoirs about their negative opinions of the company. However, in the age of social media, every employee could potentially make negative comments about an employer that could reach an enormous audience and have a devastating impact on the company’s reputation, sales, or very existence.

So what can an employer do to protect itself? Nondisparagement clauses are a useful tool employers can use in a departing employee’s separation agreements to ward off potential negative press. A nondisparagement clause can be used to prevent a former employee from making negative comments about the employer, its employees, its officers, its clients or customers, or its business or products. It can restrict the employee’s conduct only, or it can be mutual and apply to statements made by the employer, as well. If the employer agrees to a mutual nondisparagement clause, it is important that the clause clearly define which employees would be subject to the clause, especially in large companies. Employers should consult an attorney to ensure that any nondisparagement clause complies with state and local laws that prohibit employers from requiring employees to keep the underlying facts of certain discrimination, retaliation, wage and hour, harassment, or assault claims confidential.

For more excellent tips on how to handle trash-talking ex-employees, please check out my fellow royal watcher and colleague Marilyn Moran’s March 2021 article here.

Alyce Ogunsola is a senior associate at Fordharrison.

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