Sharon Koehler

Stone Industry Consultant

We all recognize this scenario– a customer comes through your door requesting your services.       

You show them your products and services. You negotiate a contract in good faith. Everybody signs on the dotted line. Everybody is on the same page. You go out to their home or business and you do a fantastic job. The customer loves it, coos over it and almost drools in your presence. You pat yourself on the back, smiling as you leave, knowing that you have done good work. All is right with world.

A few days later you send the customer a bill for the remaining balance. No worries. A few weeks go by and you notice they still have a balance due. You call the customer and leave a voice message concerning the balance due and then it starts. The customer calls and says, “There is a chip in the backsplash, I need a new one,” or (and this is my favorite) caulk. “There is a section of caulk missing. Please send someone to fix it.” (This is my favorite because most of the time, as we all know, it’s clear caulk and they just don’t see it). 

Anyway, because your business has a schedule of jobs already in place, it takes a week or so to get back out there and this whole time the customer is holding on to that final payment.  Someone finally gets out there and fixes the problem. The customer sends their balance and you move on. It’s over and done.

Or is it? A few days later you get an e mail from Angie’s List or Yelp or Honey Do that says your business has a new review. You log on only to find that you have been slammed, torn up and basically denigrated into oblivion. 

“This company is not responsive to customer concerns, not worth the money, hard to get a call back,” and the death sentence, “I would not use them again and I would not recommend them to anyone else.” 

They liked your page on Facebook so you go to their page to see what is going on and they are trashing you to all their friends. Their friends are great at sharing so now you are being trashed to their friend’s friends and by the end of the day, their friend’s friend’s friends. 

And because the customer’s Facebook account is linked to their Twitter account, you are being trashed on several fronts all at once. Lock it up and call it a day, you’re done. Is it fair? NO! But does it happen? YES!

Or consider this, a less than honorable customer tries a less than honorable approach: BLACKMAIL! How does that work, you might wonder? Simple, you give the customer an estimate for work. The customer says the price is a little too high. He can’t quite justify that amount so he asks you for a discount or he asks you to throw in some free services. 

You and the customer talk it over but can’t reach an agreement that suits both of you. Finally the customer pulls out the “review” blackmail. Give me what I want at the price I want or I will trash you all over social media. You have spent a lot of time and effort building a great social media profile and it is all about to go down the drain. Is it fair? NO! But does it happen? YES!

Is there anything you can do? Sure, but this might be a case of the cure is just as bad as the disease. Enter the non-disparagement clause. Up until recently it has been used mostly in hiring or settlement contracts. 

If you let an employee go, it is a clause in the contract that says they cannot say anything unkind or disparaging about the company after they leave the company under threat of legal recourse by the company. In more blunt terms, it’s a gag order.

But, with the onslaught of the social media review and the many different sites that allow this type of public information sharing, the non-disparagement clause is now making its way into service contracts. 

It basically says that the customer cannot go on social media or any other public forum and say anything bad about you or your company for any reason, deserved or not, without threat of legal action by the service provider. Once again, this is gag order.

Now, as an American citizen, I find this a bit reprehensible. Who are you to trample all over my first amendment rights? Who are you to not look at me as an individual and just decide that I am a conniving, less than honest, low down customer that is out to do you harm? I am an American citizen and my right to free speech is guaranteed to me by the Constitution of the United States of America! Who are you to take that away?

I, personally, once did trash a contractor on a public forum. I didn’t say anything that wasn’t true. He stole money from me. He did atrocious work. He ordered the wrong size windows. He never ordered my doors. He forged a check from my bank account. I had to have him arrested and take him to court to get my money back. 

If there had been a gag clause in our contract, I might not have been able to warn other people about him. If I had not been able to speak my piece, I don’t know how I would have alerted my community to this low life.  

But as a businessperson, I can see the other side. You want to protect your business from the less than honorable people or the “I want something for nothing people” or, let’s face it, the crazy people that we run into from time to time. But, those people make up such a small part of the population, you have to wonder if it’s worth it.  

Can you really stop a customer from trashing you on social media? Probably not. There are so many sites and public forums that you may never know what is going on. Do you want to become the business with the reputation for suing people you disagree with? Probably not, as trust is a big issue with most people.  

Also, do you want to become the company that prohibits the free speech of your customers? Probably not, with the  many constitutional debates in the news right now, you don’t want to be seen as trying to trample on yet another established right. 

To be truthful, if you are a reputable, honest company, you should not be afraid of the occasional bad review. Recently we received a review on Angie’s List that was less than stellar. We felt like we had done everything we could to help this woman with an issue but in the end, she wanted a miracle that we just could not perform. 

She was less than kind on a public forum. To a degree, she was right. We did not fix the issue she had. We did not do the original job. But, we sent someone out to look at her issue anyway. Once we saw the problem, we realized we could not do anything. We explained it to her and gave her some other options. We went away and she trashed us. 

What could we do? Not much. But, we have so many good reviews that in this case it didn’t make a difference. Angie’s List does give the service provider the opportunity to comment, which we did. But is it worth a public fight on a public forum? We didn’t think so. 

Speaking of Angie’s List, they are trying to find out who these gag order service providers are. So, if you are a company on Angie’s List and you go with the gag clause and one of their customers turns you in, they will be calling you. 

If you don’t agree to remove the clause you will be uninvited from Angie’s List. Do you blame them? Angie Hicks built a whole multi-million dollar business based on the power of the review. 

If you are one of the few companies that does not care about customer service, you should be more afraid of a bad review and a gag clause may be the answer to your problems. But, is it just a sign to the customer that you are predisposed to doing bad work? 

Does it say, “Hey customer, we can do whatever we want and you can’t do anything, so why should we try?” You look less than trustworthy and you run the risk of scaring off good, honest customers.

Is an anti-disparagement clause legally enforceable? To be honest, it’s being used in such a new way that it seems to be a bit iffy right now. Cases have been won on both sides. But, early signs seem to point to one thing for sure: disclosure is very important. 

If you put it in a contract, point it out to the customer and they sign off on it you are more likely to win your case. If you wave it in their face after the fact and say, “SURPRISE, look what we buried in the contract that you didn’t see but you signed off on anyway,” you are less likely to win your case. Ultimately it looks like it is going to be a case-by-case issue for now.

How should an anti-disparagement clause be written? By a lawyer is the best way. Apparently, from what I can see, disparage has to be clearly defined. That sounds easy but apparently it’s like pornography. Everyone has trouble defining it, but everyone knows it when they see it. 

Then you have to hone in on the type of medium or forum: oral, electronic or written to including but not limited to text messages, Yelp, Angie’s List, Facebook, etc. 

Then you have to spell out the recourse or damages the customer can incur if they post a negative review anyway. Be careful–you can’t sue for a million dollars if they said you tracked mud on the floor. 

In the end, it is the service provider’s decision. In this day and time where electronic reviews are everywhere and they can go viral in no time, is it safer to cover yourself with the few and risk alienating the many? Or do you just want to take the occasional lump and decide it’s the cost of doing business? It is completely up to you.

(Please note, no lawyers were harmed in the making of this article. I am not a lawyer and I am not dispensing legal advice. I did research by phone and online to look into this issue. Any contracts or contract clauses should be cleared with your company legal counsel).

Sharon Koehler is a 10-year veteran of the stone industry. Currently she is the head of marketing for Artistic Stone Design in Richmond, Virginia and has been a regular contributor to various trade magazines for several years. Any thoughts or comments may be sent to sharon@artisticstonerichmond.com.