Question:
Dear Nancy,
After I resigned from a home care job, was it legal for my former employer to tell me I couldn't talk to any of the employees?
Dear Nancy,
After I resigned from a home care job, was it legal for my former employer to tell me I couldn't talk to any of the employees?
Paula
Nancy Brent replies:
Dear Paula,
Your question did not contain any details about your resignation, so only general comments can be made. These comments are based on employment in a private healthcare facility.
If, for example, your resignation was the result of a contract of employment you had with your former employer and you agreed that if you left the healthcare facility for specified reasons, you would not talk with current employees, then this would be acceptable as you contracted to abide by such a provision. Likewise, if you left to take a position at a competitive facility and had a covenant not to compete with the current employer, you may have agreed not to talk to your fellow colleagues if you left. This type of prohibition is to prevent a former employee from trying to convince other employees to leave the former employer, among other reasons.
Likewise, if the resignation was to take a position such as a CNO or assistant CNO or to open a new clinic as a nurse practitioner, as examples, the prohibition is to prevent the former employee from trying to convince current employees to leave their positions and come to work at the competitive facility.
Another scenerio in which this prohibition might occur is if the former employee entered into a severance or separation agreement with the former employer and, because of the circumstances under which the resignation occurred, the former employer is concerned the former employee might "bad mouth" the facility. This type of clause often is called an antidisparagement clause.
The employer also may require that the initial employment agreement and severance agreement remain confidential and is not discussed with others, except in certain circumstances (e.g., one's attorney, one's spouse). With money and other incentives given to the exiting employee that are not required to be given (e.g., a portion of his or her salary, continued health insurance for a period of time), the employer can then require that the former employee not engage in certain things it believes might harm the organization.
In fact, such clauses also are helpful to the exiting employee. First, it is no one else's business what an employee was paid as part of a severance agreement. Likewise, a mutual nondisparagement clause benefits both the former employer and employee.
Also, keep in mind that many times such clauses are not absolute. For example, a clause may specifically name certain current employees with whom the exiting employee cannot speak. Other limitations might include time periods (e.g., six months).
If a prohibition is not followed by a former employee or former employer, the recourse is to sue the party for a breach of contract because each of the above examples are contracts and are governed by contract law.
Dear Paula,
Your question did not contain any details about your resignation, so only general comments can be made. These comments are based on employment in a private healthcare facility.
If, for example, your resignation was the result of a contract of employment you had with your former employer and you agreed that if you left the healthcare facility for specified reasons, you would not talk with current employees, then this would be acceptable as you contracted to abide by such a provision. Likewise, if you left to take a position at a competitive facility and had a covenant not to compete with the current employer, you may have agreed not to talk to your fellow colleagues if you left. This type of prohibition is to prevent a former employee from trying to convince other employees to leave the former employer, among other reasons.
Likewise, if the resignation was to take a position such as a CNO or assistant CNO or to open a new clinic as a nurse practitioner, as examples, the prohibition is to prevent the former employee from trying to convince current employees to leave their positions and come to work at the competitive facility.
Another scenerio in which this prohibition might occur is if the former employee entered into a severance or separation agreement with the former employer and, because of the circumstances under which the resignation occurred, the former employer is concerned the former employee might "bad mouth" the facility. This type of clause often is called an antidisparagement clause.
The employer also may require that the initial employment agreement and severance agreement remain confidential and is not discussed with others, except in certain circumstances (e.g., one's attorney, one's spouse). With money and other incentives given to the exiting employee that are not required to be given (e.g., a portion of his or her salary, continued health insurance for a period of time), the employer can then require that the former employee not engage in certain things it believes might harm the organization.
In fact, such clauses also are helpful to the exiting employee. First, it is no one else's business what an employee was paid as part of a severance agreement. Likewise, a mutual nondisparagement clause benefits both the former employer and employee.
Also, keep in mind that many times such clauses are not absolute. For example, a clause may specifically name certain current employees with whom the exiting employee cannot speak. Other limitations might include time periods (e.g., six months).
If a prohibition is not followed by a former employee or former employer, the recourse is to sue the party for a breach of contract because each of the above examples are contracts and are governed by contract law.
Cordially,
Nancy
Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.
