Corey Lewandowski is, or was, Donald Trump’s campaign manager. He was fired after repeated heated arguments with other members of Trump’s campaign staff. For example, he reportedly brought his press secretary Hope Hicks to tears when she sought to move into a non-campaign related position—screaming “You made a big [f-ing] mistake; you’re [f-ing] dead to me.” I’ve edited this statement slightly to keep it PG, but I have a feeling you’ll fill in the blanks. While he denies this statement ever occurred, there is no denying another example of his hot-headedness. He was caught on camera and arrested for grabbing a female reporter.
Now doesn’t this guy sound like a peach? He certainly doesn’t seem like the type to hold back his opinion. Now that he’s been unceremoniously dumped from the Trump campaign, you’d expect to hear some acrimonious statements about his former boss.
However, if you listen to his interviews you have to believe that he thinks Trump (and everybody associated with him) is the bee’s knees. He keeps mentioning how privileged he was to work on the Trump campaign and how honored he was to be involved.
As his silence dragged on as to any complaints he may have had about Trump, rumors flew that he might have a book in the works and didn’t want to reveal secrets. However, as speculation rose, Mr. Lewandowski sent out a tweet revealing that he was not and could not write a book—he was bound by a non-disclosure agreement (NDA) that prevented him from speaking.
Speak No Evil
NDAs are common fare in business. If you work for a mid-sized or larger company, or any high tech company, I would wager you’ve signed one as part of being hired. An NDA defines certain types of information as confidential and bars the person signing it from revealing this confidential information. They also include penalties if the information is revealed.
Not so long ago, it came out that all volunteers on the Trump campaign are made to sign an NDA before helping Trump. The terms of the NDA are fairly typical, barring the volunteers from disclosing any sensitive information about the campaign that they may learn. However, the restriction lasts forever, even after they stop working for Trump.
What is less standard is the non-disparagement clause within the non-disclosure agreement. A non-disparagement clause is exactly what it sounds like—an agreement to not say anything that would put the party named in the clause in a negative light.
The terms of Trump’s non-disparagement clause are as follows:
During the term of your service and at all times thereafter you hereby promise and agree not to demean or disparage publicly the Company, Mr. Trump, any Trump Company, any Family Member, or any Family Member Company or any asset any of the foregoing own, or product or service any of the foregoing offer, in each case by or in any of the Restricted Means and Contexts and to prevent your employees from doing so.
These terms are extremely far-reaching for a non-disparagement clause. Obviously the goal of non-disparagement clauses is to prevent people from publically speaking badly about a party; even the fact that it the clause applies in perpetuity isn’t so uncommon. However, the sheer breadth of who and what you aren’t allowed to disparage is impressive—and not in a good way. Also, the idea that you can contract to stop your employees from publically disparaging Trump (or anything kinda-sorta involved with Trump) is more than a little bit of a stretch.
That clause is absurd since you can’t make a contract banning somebody who isn’t even a party to the contract from talking about something. Couldn’t the volunteers just fire anybody who wanted to talk badly about Trump? You’d be correct that there is very little protection on a federal level (unless you are a federal employee) against being fired over which candidate you support.
However, many states (Michigan, California, New York, Florida, Ohio, West Virginia, Pennsylvania, Oregon, Colorado, Kentucky, North Dakota, and Louisiana) have laws making it illegal to fire or threaten to fire an employee based on their political affiliations. A contract which requires one party to act in a manner that is illegal is unenforceable.
Can a Contract Keep Lewandowski From Speaking His Mind?
Given that the Trump campaign binds its volunteers to such contracts—even though their enforceability may be on shaky ground—it can be assumed that the higher ups sign similar NDAs. NDAs including the same strict non-disparagement clauses the volunteers must sign. There is no question that a paid employee such as Mr. Lewandowski could be held to an NDA he signed. This might explain his behavior in interviews. But are these contracts really legal?
Non-disparagement clauses have come under fire in the past few years. However, this has primarily been in the context of businesses penalizing customers for leaving bad reviews. The practice was a common one for a while until there was substantial national backlash after two Utah residents were charge $3,500 for leaving a bad review. They refused to pay, leading to serious issues with their credit and difficulty getting a home loan. The couple took the company to court and walked away with a $300,000 judgment.
Today, non-disparagement clauses barring bad reviews are non-enforceable in California and Maryland. At a federal level, the government has failed to pass a law banning the behavior despite substantial pressure from the public. As it stands, a law penalizing non-disparagement clauses barring bad reviews has passed the Senate but has yet to pass the House and become law. These bans are far from the norm; most states treat these clauses as part of doing business.
When it comes to applying non-disparagement clauses to employees, government agencies have expressed concern over whether some non-disparagement clauses in employment agreements may illegally prevent employees from filing legitimate charges with agencies such as the Equal Employment Opportunity Commission. However, there are no actual laws barring the practice.
Non-disparagement clauses certainly don’t show much respect for free speech and the democratic process on the part of the Trump campaign. Frankly, they are fairly bad for the public in any sense. The ability to criticize businesses, employers, and politicians, helps keep these parties honest and benefits everybody. As it is, Mr. Lewandowski’s NDA is almost certainly legally binding on him—don’t expect any inside information anytime soon.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
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