Non disparagement agreement with one company name I posted under another company name on LInkedIn

Question

I signed a non-disparagement agreement that says the two parties are

"Employee" (my name here) and "Company" (Company Old Name Here).

The company changed names and I posted something on the LinkedIn page for "NEW COMPANY".

The HR director sent me an email reminding me of the agreement. I responded that my agreement was with OLD COMPANY and my post was on the page of NEW COMPANY.

Some facts:

1) In the first paragraph and right above the Company's signature on the last page it mentions OLD COMPANY. Everywhere else in the entire document it only references "Company" from the first paragraph. NEW COMPANY isn't mentioned at all.

2) To complicate matters even more my paycheck was from COMPANY Z and not from OLD COMPANY or NEW COMPANY. This company is made up of about 7 or 8 different companies they acquired over the years.

I replied to the HR director basically saying that I was shocked that she would imply that I would disparage "OLD COMPANY" the company mentioned in the agreement, and that I would never do such a thing. Then I pointed out that my post on linkedin was for NEW COMPANY and that I didn't remember signing an agreement with NEW COMPANY.

How much trouble am I in? Should I get a lawyer? Should I start getting fitted for a prison jumpsuit?

Answer 1

How much trouble am I in?

After reading the comments and chat, I highly doubt that you would be in trouble for something like this. I'll just clarify some confusions that are palpable from the comments/chat.

The biggest trouble one could have faced is a claim of defamation regardless of the Non-Disparagement Agreement. However, according to your elaboration of the LinkedIn post, that is not the case because truth is an absolute defense in defamation lawsuits.

The difference of names OldCompany and NewCompany is irrelevant if they can be reasonably understood as referring to the same entity.

Regarding the entity's convoluted mergers and operations, what matters is the concept of economic reality: Your post being about the same entity (1) for which you performed work, (2) by which you were paid, and (3) on the entity's LinkedIn page are very likely to outweigh the [rather inconsequential] fact that the company has used different names.

Since the contract [based on your chat] does not specify sanctions for "violating" the non-disparagement clause, a court would have no objective way to quantify damages for you to pay to the company. The severance you received would not be indicative of that either.

Depending on the specifics about your friend & ex-colleague's veteran status, and the conditions of his or her employment & termination, your public denouncement of his or her firing might be protected by the whistleblower statutes of your jurisdiction. Thus, if the company filed a lawsuit against you for violation of the non-disparagement clause, then you might want to analyze the whistleblower legislation to identify whether or not the whistleblower protections are available for your defense strategy.

My limited knowledge of whistleblower laws is that they relate to denouncements to a public/governmental body, whence an argument in the sense of whistleblower protection might require further thought and consideration of your specific situation.