Non-disparagement is not the same thing as non-disclosure. It seems simple and straightforward, except when it isn’t. That was the case of Savage v. Township of Neptune.
It was only a matter of time before New Jersey courts began passing judgment on the March 18, 2019 amendment to the New Jersey Law Against Discrimination (“NJLAD”) preventing the enforcement of non-disclosure agreements in employment contracts and settlement agreements. In 2019, pundits and practitioners questioned the breadth and scope of that supplement to the NJLAD. Three years later, in Savage v. Neptune, the New Jersey Appellate Division has now made clear that non-disparagement provisions are not covered by or included within the prohibition against non-disclosure provisions in employment contracts and settlement agreements.
Still, it is easy to see how two fundamentally different covenants – non-disparagement and non-disclosure – can be blurred, and that’s precisely what happened in Savage v. Neptune. In an underlying litigation, the plaintiff, a sergeant with the Neptune Police Department, alleged the township engaged in sexual discrimination, harassment, and unlawful retaliation in violation of the NJLAD. The parties ultimately settled that dispute and entered into a formal written settlement agreement that contained a non-disparagement provision, but not a non-disclosure provision. The non-disparage provision, which was reciprocal, provided:
The parties agree not to make any statements written...
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