
Abuses Hide in the Silence of Nondisparagement Agreements - JoshTriplett
https://www.nytimes.com/2017/07/21/technology/silicon-valley-sexual-harassment-non-disparagement-agreements.html
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tptacek
In the medium term, it seems like there needs to be a federal mandatory public
policy exemption to nondisparagement, rendering the agreements unenforceable
in cases like these and sanctioning illegitimate attempts to enforce.

In the short term, it would be good if people could organize legal aid for
people in our field working under nondisparagement clauses. Some of these
clauses may be _prima facie_ difficult to enforce due to language; others may
leave room to report companies to legal authorities.

Finally, and I'm a broken record on this: if a significant fraction of
engineers at any company organized themselves and demanded reasonable
limitations on their nondisparagement clauses, for instance to protect
whistleblowing, _they would get it_. What's a significant fraction? At many
companies, it's probably less than 20%.

I hope a lot of tech industry employees are, as we speak, talking with their
friendly peers at their companies and starting to think about how to reach out
to labor lawyers to start this process. It's not that hard, and, for the time
being, federal law protects you extensively in the process of organizing your
workplace.

~~~
curun1r
There might be unintended consequences to rendering these agreements
unenforceable. Over the course of my career, I've seen plenty of cases where
employees have been part of a layoff and I've had it happen to me a couple of
times as well. In almost all of these situations, employees have been asked to
sign one of these non-disparagement agreements. Rarely, if ever, has anyone
intended to disparage the company. But in any contract, both sides are
supposed to receive consideration, and the agreement is what the company
wanted for piece of mind. What the employee got was money, often quite a bit
of it. If these agreements are ruled unenforceable, I'd expect companies to
dial back the amount of severance they offer since there's little other
consideration they could ask from departing employees. For those of us that
have little interest in engaging in a public war of words with a former
employer (regardless of the company's behavior, it's rare that doing so will
do anything other than hurt an employee's future job prospects), unenforceable
non-disparagement agreements would only cost us money.

Where I think it would be reasonable to make changes is to carve out
exceptions to these agreements that are always allowed. Sexual harassment, for
example, shouldn't get to hide behind a signature that was made to receive
severance. Likewise, it should always be allowed to report a crime to police,
even if it means accusing a former employer. Making these carve-outs explicit
might make these agreements more reasonable without limiting their
attractiveness to companies offering severance.

~~~
walshemj
you of course where paid for the "non-disparagement" aka compromise agreements
?

Otherwise id be thinking well if they want me to sign this they must have done
something wrong in the redundancy process

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addcn
As someone who has regrettably had to use one of these, I can say I'm happy
they exist. They are certainly abused so we had a policy of only using them as
part of a legal settlement.

We had someone who became mentally unstable on staff and they mounted a full
on campaign against the company online whilst still employed. This included
impersonating executives, other employees and key customers on social media
and other things meant to damage our image. They got a sum ~30% of their
annual salary and we got a non disparagement agreement. They were let go as
part of that. 1 month later they were at it again and we were able to get our
money back. Right before it bankrupted them...guess what stoped happening. We
dropped it without taking a cent of their money (we wouldn't actually do that)
Hasn't been a problem.

They can be absused, sure but there are legitimate uses too.

~~~
JumpCrisscross
I am not a lawyer, but is there a line between truthful disparagement and
untruthful disparagement? Similar to how we adjudicate slander and libel
claims?

~~~
MacsHeadroom
That line depends on the jurisdiction and you'll have to pay to find out where
it lay. If out happens to be in your favor, you may have to pay again at the
next court up.

The only winners in this game are the lawyers.

~~~
JumpCrisscross
> _The only winners in this game are the lawyers_

Because nobody benefits from the rule of law except the lawyers...

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Hnrobert42
From the article: Employees increasingly “have to give up their constitutional
right to speak freely about their experiences if they want to be part of the
work force,” said Nancy E. Smith, a partner at the law firm Smith Mullin. “The
silence sends a message: Men’s jobs are more important than women’s lives.”

I don't understand how the second quote is related to the first except in the
case of the discrimination settlements.

~~~
ivanbakel
I'm guessing it has something to do with the missing part of the first quote.
It doesn't look like the lawyer quoted used the word "employees" to start that
sentence, and I'd wager it was more specifically about women in the workforce
being made to sign these agreements.

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danek
Someone I know had to sign one of these as a prerequisite to getting a
severance, but before the actual amount of severance was revealed to him. He
asked my advice on it and I suggested he sign bc it would be reasonable for
both parties. (But basically his very new boss was very authoritarian and
vindictive and didn't like him, he was doing fine for years..). So he signed
it. And then he got an astonishingly tiny severance check. So much so that I
nearly disparaged the company.

~~~
rstephenson2
I'm not a lawyer, but don't contracts require consideration for both parties?
Usually when employers require an employee to sign something, there is an
implicit consideration "and you get to keep your job." But in this case he was
already fired. I suppose it may have said "...in exchange for severance, at
[employer]'s sole discretion" but it seems a bit fishy to me.

~~~
ahlatimer
The non-disparagement clause may have been bilateral. The consideration, in
that case, is "we won't talk negatively about you if you don't talk negatively
about us."

Here's an example of a former reddit employee disparaging the company and the
CEO stepping in and giving his side:
[https://np.reddit.com/r/IAmA/comments/2iea97/i_am_a_former_r...](https://np.reddit.com/r/IAmA/comments/2iea97/i_am_a_former_reddit_employee_ama/cl1ygat/?context=3)

~~~
js8
> The non-disparagement clause may have been bilateral. The consideration, in
> that case, is "we won't talk negatively about you if you don't talk
> negatively about us."

Cannot offering of such a clause be considered a blackmail?

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phkahler
Slander can get you in trouble. Anti-disparagement agreements should be
considered unconstitutional, or at least have some kind of high bar for being
allowed at all.

~~~
pmiller2
They are not unconstitutional for basically two reasons. One is that, for
there to be a valid contract at all, it needs to be voluntarily agreed to.
Hence, the clause itself would be voluntarily agreed to. Second, it's not the
government limiting speech, which is all the first amendment covers.

~~~
js8
> Second, it's not the government limiting speech, which is all the first
> amendment covers.

Oh boy. I was born in a totalitarian country. It saddens me that people are
happily making the same mistakes.

The dichotomy between the government and private institution you (and many
libertarians) present doesn't really exist. Your rights are something that you
cannot sign and trade away.

The reason why free speech exists (as a concept) is that so you, as an
individual, could freely discuss wrongdoings and bad practices without fear of
retribution. The idea is, ability to discuss these things leads to more
efficient society. And this is true regardless whether the subject of
criticism is the state, or any other institution, or any other human, even.

In your argument, somehow, you forgot the reason, why you have free speech.
And so had been tricked into thinking that it is less valuable (because you
don't understand its value), and you are willing to trade it away. Don't be
that stupid.

~~~
KGIII
Hmm...

Your employer can disallow you to carry a firearm on their property. You can
sign a confession. You can let them search without a warrant.

I guess I question your belief that you can't trade your rights. I am not
saying you should, but it appears you can. You can even waive your right to a
speedy trial.

~~~
js8
I am talking about human rights, not about U.S. Constitution. I don't think
there is a human right to carry a weapon. Confession and not being searched -
not sure, maybe the right for due process.

And yes, I mean people should stand for it, of course it's not guaranteed. At
least, they should educate themselves about rationale behind human rights, so
they wouldn't foolishly trade them away for nothing.

~~~
walshemj
Depends the 2nd descends from common law which has the right to self defense
which is its self a human right.

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BrandoElFollito
This is one of the advantages to have a very strict labor law in France. This
is something which cannot be enforced (should it even appear in the contract).

There are disadvantages to that law, but in average the pros > cons.

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Overtonwindow
I work in the world of politics, and I've yet to see one of these. I think
this is because in this world, if you talk negatively about your old job, your
old boss, or whatever, no one is going to hire you. You become a liability.
This has probably led to some horrible things happening to good people, but
they keep their heads down, say nothing, because they want to still be
employable. I have a similar situation in which I could probably become a
whistle-blower against my former employer, but I don't, because if I do my
career is over.

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brndnmtthws
How enforceable are such agreements? IANAL, and I'm genuinely curious.

~~~
tbrownaw
From what I understand, that tends to be two separate questions. How
enforceable are they if the individual in question _can_ afford lawyers, and
how enforceable are they if they can't.

It it something that would get thrown out immediately or would have to be
argued extensively, and is it something that the various activist
organizations would provide lawyers for or that lawyers would take on
contingency?

~~~
danek
Excellent point. And now I suppose that every legal question is really two
questions ;)

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x1798DE
My company has a non-disparagement policy (just something you can get fired
for, not sued), but when people ask me what it's like to work there, I usually
tell them, but with the explicit caveat that the non disparagement policy is
in place, so my (or any current employee's) expressed opinion on the matter
can't be trusted. Kind of a shame though because (and of course you can't
trust me on this), I actually do quite like it there.

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tsukaisute
"The incident was described by two entrepreneurs who were told about it in the
weeks after it occurred but were not authorized to speak about it."

May be unfair to all parties involved that a situation is described on
hearsay, with the source not identified, and not even being a direct source
(someone who wasn't at the event, and who heard about it weeks later.)

~~~
x0x0
Angel is free to waive their NDA and we can hear from a primary source. Their
unwillingness to do so makes clear what that person would say.

~~~
tbrownaw
Or they have blanket rules, specifically so that people _can 't_ make reliable
inferences from their behavior in specific cases.

There's even a standard joke on this, IIRC the setting is some sort of court
case:

    
    
        "Did you sleep with Joe on Monday?"
        "No."
        "Did you sleep with Joe on Tuesday?"
        "No."
        "Did you sleep with Joe on Wednesday?"
        "I refuse to answer that question."
        "Thank you."

~~~
valuearb
If you are innocent and care about how your company is perceived, you don't
have blanket rules. If you are guilty, blanket rules are the easiest way to
deny the problem.

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yuhong
I have been thinking about Yishan-style CEOs and getting rid of
nondisparagement in things like severance.

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praulv
How practical are these in a glassdoor world? There is no way an employer
could track down an anonymous posting online and force you to relinquish your
severance.

~~~
gjjrfcbugxbhf
They could certainly get an IP address from the website then a customer from
the ISP. Whether this process would lead to the poster depends.

------
known
NDA != Slavery

