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Fired? Speak No Evil (nytimes.com)
726 points by uptown on Jan 3, 2014 | hide | past | favorite | 355 comments

Non-disparagement clauses can be seen as a throwaway item, a suffocating burden, an essential protection, or a damned nuisance, each according to taste or context.

To begin with, lawyers tend to see these clauses as essential protections and they are sometimes right. But, right or wrong, they tend to insist upon them, especially in the employment context. This explains their prevalence but, of course, does not necessarily justify their use.

Just to illustrate the cases where they truly are an essential protection, you and a competitor have been fighting for years in court over ugly and untrue things that someone has said about you or your company - non-trivial things that have really hurt you. When it comes time to settle that case, a continuing non-disparagement obligation will be not only helpful but essential to the resolution. The same is true in many other legal fights. When emotions have run high, and parties have antipathy toward one another, it is good practice to help ensure the peace after their fight has been settled to require that they not speak badly of one another and to give a simple mechanism such as binding arbitration to help resolve any follow-on dispute over whether they have done so or not. In such cases, there are excellent reasons to bind parties contractually to restraints on their ability to speak where they would normally be free to do so.

The employment context gets trickier because the antecedent acrimony that characterizes a legal fight may well not be present at the time of a termination and the question then arises: why am I being artificially muzzled? And there is a point to this: why be barred from speaking truthfully about a former situation even if it might be negative? why be at risk of a harassing lawsuit over what it means that something "may" reflect "negatively" about someone? why, in an age of easy communication through social media, be made to feel you cannot even speak about something that may have been a major part of your life, perhaps for many years? What may be seen as a throwaway item by some can be felt to be suffocating by others, and all the more so because it is tacked onto a token severance that gives you very little in exchange.

That said, I would say that the overwhelming number of employers and employees alike see these simply as throwaway items. They figure no one will care about such clauses except the lawyers. And, in most cases, they are probably right. The question then becomes whether one should not sign as a matter of principle or whether to just sign and take the money. Most employees take the money.

Of course, employees can push back if they have leverage. No one is obligated by law to sign a separation agreement. If the terms aren't right, and can be made right, then push back. Insist that the token severance be made more substantial. Or that non-disparagement, if it is to be included at all, be made mutual (it can be quite a head-ache for a large employer to keep control of its many people to ensure that none speak badly of you). Or insist that it be narrowed or clarified so as to reduce or eliminate vagueness about what may or may not be deemed disparaging. Or insist that it be coupled with other considerations that give you benefits apart from your normal final pay, etc. This sort of negotiation can make these clauses a big nuisance from the employer standpoint and may cause the employer simply to drop the clause. However, all of this assumes employee leverage, which doesn't often exist in the routine case, and so, as noted above, most employees simply take the money, accept the restriction, and don't bother to look back.

And so it all depends. For the author of this piece, this was a critical issue. For many others, it is not. Context is critical. And for all but trivial cases, do check with a good lawyer to understand the implications of what you are signing. If the risks are real, there is nothing worse that a harassing lawsuit from a former employer angry with you over some statement you made out of emotion. This is what gives these clauses a bad name and it is also what can make them dangerous. In such cases, be cautious about exposing yourself to such risks in exchange for some token severance. It is probably not worth it.

A couple employers ago I was leaving a job to found a startup and talking to a lawyer about unrelated things and casually brought up the termination agreement they had asked me to sign. His response was "Unless you need the money, I don't see what reason you would ever have for signing that."

The lightbulb that went off in my head was that every legal document you sign is basically a business transaction: you give up something, they give up something, and hopefully what they're giving up is worth more to you than what you're giving up.

So one way to think about this is to forget whether it's "common" or "routine" and imagine this thought experiment. A former employer comes up to you on the street and offers you a couple thousand (or whatever the severance terms were) in exchange for giving up the right to say negative things about the company (and any other terms they ask for). Do you take it? Well, it depends on a lot, including your personal financial situation. For a tech worker, it's probably not worth it; a couple grand is a drop in the bucket compared to the risk of a lawsuit. But if you need to make rent next month and just want to move on with your life, there are some situations where it could be.

This is actually the legal definition of a contract. BOTH parties have to gain something. If I get you to sign a contract that says you will never speak negatively about me, but I don't give you anything in return, the contract is null and void. I believe this is referred to as "consideration." If there is no consideration (i.e., benefit) for you to sign the contract, then it can't be enforced.

That's why if someone asks you to sign it, you can either ignore it or demand some sort of consideration (e.g., compensation) in return for signing it. Otherwise, it's unenforceable.

You said context is critical and this is interesting because a friend of mine is currently dealing with how to handle termination for a contract job (1099 not W2) they were performing.

They had worked for this company for about about half a year now and every single itemized invoice, which should have been paid in X days, was paid over over 4 times X days late every time and the CEO was unresponsive to emails addressing this. The CEO was verbally abusive over the phone and in writing such as in emails and text messages. The contract stated that she would get $X amount for Y hours of work per week. After enough abuse they gave the company the notice and asked to be paid the already late invoice for the previous month and the current invoice submitted a day or two prior and due in less than a week. Now the company has presented a termination contract with all the sorts of reprehensible clauses we are discussing here and they are stating that the consideration is that they won't dispute the hours itemized on the last invoice. They refuse to pay the final invoice unless this person signs the termination contract. This isn't worth seeing a lawyer about given the invoice amount.

Furthermore, the person in question was hired to do administrative work for the company, which is what they did initially, but ended up handling almost exclusively personal issues for the CEO for last few months, which quite frankly strikes me as malfeasance since the CEO was paying for personal assistance needs with company funds. IMHO Some of the work performed should have been paid out of the CEO's pocket instead of the company's funds.

> This isn't worth seeing a lawyer about given the invoice amount.

It may be appropriate for small claims court, then.

> Some of the work performed should have been paid out of the CEO's pocket instead of the company's funds.

Not your friend's problem. That's between the CEO and the board. Maybe they want the CEO to have a personal assistant take care of minor but time-consuming personal matters.

Your friend had made a mistake. He should not have continued working without pay. There is nothing to be done here now. This CEO have an upper hand and your friend is not in a position to make any bargains. A take-away lesson - do not work without pay.

(just for a reference, what nationality is the CEO?

It is further questionable whether this person could even legally work as a contractor. Depending on the level of control the company exercised over how your friend performed their duties (and "admin stuff" sounds pretty hands-on to me), the government may actually consider them an employee. In that case the company is withholding wages, which would get them in a much bigger amount of trouble.

I'd like to see some fairness in the matter. I will sign all the non-disparagement clauses you guys like, if you do the same. In other words, the company cannot make any negative comments about me.

In general, I think fairness should be pushed way up front. Want me to give you two weeks notice? Okay. You give me two weeks notice before you "terminate" me.

It's all a contract, and there are two sides to it. I don't see any reason why one side gets all the royal treatment, whereas the other always gets the short end of the stick.

Only the life is unfair and the distribution of power is completely asymmetric here. You may actually need a positive reference about you and the company usually don't care what you say. You also don't have any way to verify and prosecute a company, if your former boss actually makes a negative comment about you (think a start-up, an immature founder gradually turning into a complete ass-hole under the pressure of real life and when feeling that you are deserting, when you decide to leave).

> the distribution of power is completely asymmetric here

I'm pretty sure there is no fundamental law of the Universe that makes it so, only the fact that it is allowed to persist in this state by the multitudes who actually (but unknowingly, it seems) hold the power to change it.

You know, "if only there was a way" for employees to unite, and therefore increase their bargaining power with employers.

I don't think that employee unions are helpful in the long term. I'd rather see individuals exercising some common sense and making good informed decisions. Like instantly recognizing bullies and not working for (with) them. Quitting, the moment such behaviour is directed toward anyone in the company. After all, if you see someone else being bullied/not paid/whatever, given time, there's a good chance it would apply to you as well.

It would be great if everyone were in a life situation to be able to do that. Unfortunately, most people are not.

> I'd rather see individuals exercising some common sense and making good informed decisions.

Make no mistake, I'd rather see that, too. But look around you. Is that how the real world really works? Is that the way of human nature?

It sure is nice to lounge around in some libertarian ivory tower, and pontificate about how people are such rational agents, and all that nonsense. Whereas outside it's Hindbrain City all the way. Look at how most people choose their diet - and look at the effects thereof - just to name one out of many chronically idiotic decisions that the masses do.

What you're proposing is not rational, it's a pipe dream (or the typical libertarian anti-union dogma). The rational thing is not to sit on your ass and do nothing. The rational thing is to recognize that there is a problem, get up, and fight.

The mutual non-disparagement contract is not all that mutual. As an employee you are prevented from talking bad about the company, so you will say nothing about them. However, if you are looking for a new job, your new employer may call your old employer to check up on you. If there is a mutual non-disparagement contract at play, they will be passed to the corporate console who will tell them that so and so employee did work for the company from date to date, but they can not discuss the matter any further. For all employees this is a huge red flag. And the best thing, when asked about it, the employee would not be able to explain the situation because of the same contract.

If your company asks you to sign a non-disparagement contract, ask them for a reference letter in return. Chose a project or 2 you did a good job on and ask them to write you a good or at least ok reference.

This is all most large corporation will do, confirm you worked for the company. So is it a red flag that you worked for a large company?

Exactly, many large companies have a company policy that limits them to only confirm the dates and title at the company. Any further elaboration is prohibited (positive or negative) and a former colleague of my missus did get into trouble for elaborating positively in a proper reference when they had such a policy in place.

True, but there is an effective way around this:

"Would you hire Jack(ie) again?"

Tells you all you need to know.

What if the response is "No comment." as per corporate policy? I think a lot of people would interpret that answer to simply mean "no", but it doesn't necessarily mean anything regarding Jack(ie).

Yes, governments and corporations hate whistleblowers (and critics who know in-depth what they're talking about). I agree that leverage is important, and that's why people should band together in groups which increase leverage. Not to mention making these things de facto unenforcable.

And I was soon informed that the president wished to assure me that there is nothing unusual about such clauses

Whoop whoop whoop! This sets off giant alarm bells in my head.

It might be totally normal. That doesn't mean you should sign it.

It's also an older-than-dirt salesman tactic to say that something you just made up is "totally common."

Of course, the company can attach whatever clauses it wants to a separation agreement. You aren't entitled to a severance payment. I'll tell other engineers that two weeks' salary is a piddly amount for the company for you to surrender such rights. You can just walk away. They are the ones who want you to sign that.

(It's kind of ironic, but after you have been given notice you are fired, you have power. They want you to do certain things, and what are they going to do? Fire you? Already did that. Withhold pay? Illegal.)

I love it whenever anyone insists something "isn't a big deal" or they don't care about it that much. I will simply say that it is a big deal to me, so if it's not a big deal to them, they might as well do it my way. This works in almost all cases, or the other party has to backtrack and then at least we're negotiating on more transparent terms.

Exactly this. If it's "no big deal" then ex it out of the agreement. Oh? You won't? Then I guess it is a big deal after all.

The same thing happened when they tried to tack on fee when leasing my car. Also, if they offer to split the cost of an add-on with you, they can eat the whole cost most of the time.

As a corollary, I try to think through this any time I say something "isn't a big deal". Is it really not a big deal to me?

What people often mean when they say "it's not a big deal" is "it's a big deal to me, but it shouldn't be to you". Usually, they don't have any right to make that decision for you and it's really just a manipulation technique.

It's all dependent on the worker's rights in the state in which you work. NYS for example, almost always sides on the side of the employee. One thing to really think about is this - take the paperwork with you, and consult a local Labor office for your state. Kindly say, this is something I need to sleep on. I wouldn't dare sign anything under diress and I'm sure any lawyer worth his salt would say the same.

You have to be careful about this, too. I've seen one of these from a California employer that uses a Florida "choice of law" clause, too. I'm no lawyer, but I suspect that radically changes the calculus.

So what happens when I sign and still rant about the company. Say on my blog. The company is already struggling financially it will cost them to fight back.

> So what happens when I sign and still rant about the company.

Then you've broken your word.

.. and no shot of a healthy Safe Harbor gift a few months down. I got, on top of three months' severance a surprise $2K Safe Harbor gift, only having worked for the company for just over a year. And they were effective references, including the man who sacked me.

Leaving gracefully (and briskly without making a scene) can indeed be helpful, though perhaps not in the Times author's circumstances.

Well, they have to get a court to decide that, now don't they.

Courts decide legal issues. If you give your word that you'll refrain from doing something, and then you do it, then you've broken your word, regardless of legalities.

If I signed the contract, I said I would refrain of disparagement. If I was subsequently critical of the firm and the company thought it rose to disparagement, it becomes a legal issue.

Yeah but you're not going to have a leg to stand on so any lawyer is going to tell you to settle immediately if they even threaten to go after you.

Maybe, maybe not. Legal action is costly for both sides.

Not if you're awarded legal fees.

Someone who signs because they need two weeks' pay isn't going to be able to afford both sides of a legal fight. You still have to pay your lawyer while you're waiting for the other side to stump up the money.

If "you're awarded legal fees", it only happens as a result of a trial/hearing. The cost to prepare + present at trial might be very substantial.

Exactly, nothing will happen. At some point you see the big picture; the company is struggling for money. They already know your financial situation (unemployed) so the will not waste resources going after your assets. Like someone else said too, the burden is on them to show something is disparaging. Why not take it to court and drain what little resources they have left. You can drag it out as long as you want, not like you have a job! What a silly clause, I don't ever see it affecting you just from a blog posting. Disclaimer; not a lawyer (thank god because lawyers come up with this bs)

But let's say you win the lottery, and a troll buys the cheap remains of the failed company. Now the troll can go after you.

I think the usual response is that the clause is not a big deal, but removing it is--they have to get their lawyers to review the changes, etc. I have seen at least one employer go ahead and make a change without consulting the attorney so I'm not suggesting this is a canned response, just one I've gotten a number of times.

Depending on where you are, "severance", or the 2-week pay after you have been told you do not have a job anymore, may or may not be a worker's right.

IANAL, but while that may be true in general, California (where the author was employed[0]) is an at-will state, and most people reading HN (in fact, most people working at startups in general) are likely to be employed at-will. AFAIK, that means that they are not entitled to any severance unless their initial contract stipulated otherwise.

[0] Actually, where the company was based we don't know which employment laws applied to his contract without reading it. You can be a California resident employed by a Delaware corporation operating out of California and your contract can still be subject the the employment laws of a third state. I'm not entirely sure how this actually works in practice, but I know it is done.

EDIT Some quick Googling found this website, which has some interesting information (albeit a rather terrible layout): http://www.careerprotection.com/severancepay.html

"California is an at-will state,"

California is an odd example of an at-will state, for various reasons.

There have been a lot of implied-in-fact exceptions to the at-will doctrine (see Pugh v. See’s Candies, Inc. ) essentially holding that your employment contract would not control if the employer gives you a different impression.

The general legal view is that california is not really an at-will state anymore, because of the routine exceptions that get made.

IE cases holding "evidence of a “long and distinguished career” supported finding of implied contract not to terminate without good cause", etc.

See http://ainleylaw.com/2012/10/25/avoiding-the-at-will-bar/ for a random list of cases and holdings.

Suffice to say, i would not hold up california as a typical example of anything employment law related :)

While working in at-will states, the severance agreement may in fact be the first document you sign that is actually legally binding upon the company in any way.

Most offers I see are clear that the letter is not a contract, and no contract can even exist without direct and explicit intervention by the CEO. And that seems to be a left-handed way of saying that if you do try to get an actual contract, you will not be successful, and the offer of employment will be withdrawn. I would very much like to see more at-will workers do same-day resignations when they change jobs, possibly even writing their own severance agreements.

It isn't unprofessional to abruptly walk out on the job if giving notice was never in the requirements. And most of the time, all that you get for the courtesy of making it easier for the employer to replace you is a payout for your accumulated vacation time, if anything.

    It isn't unprofessional to abruptly walk out on the job
    if giving notice was never in the requirements.
While you would be fully within your legal rights to quit without notice, and they would be fully within theirs to fire you effective immediately with no severance, both would be rude, contrary to custom, and unprofessional. It's reasonable and healthy to have customs that are not fully backed by the law, and trying to set up the law to fully match our senses of justice would be massive overengineering.

Having recently experienced such rudeness from an employer, I feel fully justified in recommending tit-for-tat retaliation from employees. Holding to human standards of decency is no longer warranted when your employer no longer views you as a human being.

Given the behavior of my current company towards all of its employees, I am looking to go elsewhere, and when I do, I won't worry overly much about burning those bridges behind me. The at-will sword is two-edged, so let the other guy feel the backswing occasionally.

That's true in general, but conditional severance isn't the same thing as unconditional severance. Conditional severance, depending on the conditions, may well be a quid pro quo. If the money is compensation for e.g. a non-disparagement clause than it isn't also customary two weeks severance.

If such practices are widespread in a particular industry than that industry in practice doesn't provide severance. In those circumstances, it makes sense to withdraw the corresponding practice of giving notice. Or perhaps instead substituting a practice of conditional notice.

> It isn't unprofessional to abruptly walk out on the job if giving notice was never in the requirements.

I disagree. One of the things that distinguishes professional behavior for me is having professional standards. That is, no matter what your clients or employers do, there are certain ways you plan to behave. For me that would definitely include a good handover.

Of course, my professional standards also include refusing to build things that are obviously dumb, dangerous, or destructive. But a disturbing number of developers feel that they should just do whatever their bosses tell them, no matter the disaster that they set in motion. So one could argue that a lot of IT-related jobs are more trades than professions, in which case a "take this job and shove it" exit could be more acceptable. Not because it isn't unprofessional behavior, but because professional behavior isn't expected.

When an employer treats the employee unprofessionally, is that not an indication that professional behavior is not expected? If you have an expectation that your employer will provide notice and severance before termination, as might be specified in an employee handbook and verified by departing colleages, then giving notice before resignation would be appropriate. If, on the other hand, your company has in the past terminated people without cause, notice, or severance, and the handbook states in no uncertain terms, "You LOSE. Good DAY, sir," then I think any gestures for your personal honor will be lost.

We have no union or professional association to protect our interests in my labor category. We have only the willingness to be faithful and courteous to those who treat us well, and to be stubborn and vindictive to those who would abuse our good faith. Bite the hand that beats you.

No. If ethics are purely determined by how other people act, they aren't ethics.

I think that professionals have to be careful in who they choose to work for, but once they start, they should act professionally. That includes leaving professionally.

If you don't make some allowance for other people's behavior in your ethical system, your ethical strategy can easily be subverted by someone else that does.

In game theory simulations, strategies that respond to counterparty behaviors, such as tit-for-tat, always outperform those that do not, such as always-cooperate, always-reneg, and random-choice strategies.

Your strategy is apparently always-cooperate. It's a loser. If you do not penalize bad behavior or unbalanced deals, they will become more prevalent in the environment.

My strategy is not actually always-cooperate, and I don't fathom how you got that from my words.

> t isn't unprofessional to abruptly walk out on the job if giving notice was never in the requirements.

Depends on circumstances and the details of your profession. If you're just a badly-treated wage slave, then definitely: walk out as soon as you find something better.

But I'm an independent contractor/freelancer, and I'm currently working on a project that would probably take about a year. But my contract is always to the end of the quarter and gets extended by a quarter. I could probably refuse such a contract extension, and I considered it, because a previous client where I really, really enjoyed working, asked me if I was available. But I didn't because I felt it would be unprofessional to leave at this stage.

It seems to me that a project that should take a year should have contracts that last for the entire duration.

If we're talking about professionalism, at what point did you bring up to the client that their quarterly contracting strategy leaves them extremely vulnerable to losing critical personnel before the work gets finished? I think what happened there is that they leveraged their project management flexibility against your sense of integrity, and you lost.

They're big. The people I talk to don't control the policies regarding contracts.

In any case, I didn't lose anything. As long as I get paid for the hours I work, I'm happy. I'd be totally fine with the contract getting terminated tomorrow. I'm also fine with working here for another half year. But at more than a year, I think I'd get itchy.

It isn't unprofessional to abruptly walk out on the job if giving notice was never in the requirements.

I don't think "unprofessional" means what you think it means. It is not, for instance, a synonym for "illegal."

> and most people reading HN (in fact, most people working at startups in general) are likely to be employed at-will

I'm not so sure about that. While Silicon Valley particularly, and the US in general, has a disproportionate number of high tech startups, you also have some of the weakest workers rights in the world, and while I don't know the exact demographics of HN, I'm not so sure it is that focused around California.

Pretty much all of Europe, with a population of about 800 million, for example, have protections that are vastly stronger. A substantial majority of countries have 1-3 months notice periods that are hard or impossible to get around, in some cases with a legal right to actually continue to show up to work and carry out the contracted work during that period even if your employer would like to pay you to stay away.

wow 1-3 months of notice, that's insane.. seems impossible to let go of a poor performer.

It is quite common with a 3-6 month trial period, where you can be fired with shorter notice.

IIRC, the author lives in NYC, so I assume he was working remotely. If that was the case, which states laws apply? What if one of the states is an at-will state and the other isn't?

I've often seen contracts explicitly contain "Disputes will be handled in CA and I waive my choice of venue."

If it's a small company in California they really don't want to take a bus to Texas to get into a legal fight with you.

This is one of those cases where you can't have both sides compromise. They want things jurisdicted (izzat a word?) in one state or the other. And the company is the one with the lawyers who have crafted things specifically for their home state.

You should give them this, perhaps in exchange for something else.

If it's a mass layoff, the event will probably fall under the WARN act which requires 60 days notice for "full-time" workers.


plant closing is loosely defined. I worked at a bank that closed a division, and the division closing fell under the WARN Act.

Only if it's part of a "plant closing."

I am currently awaiting a 60 day notice, as 80% of the company is being laid off. Our parent company recently laid off a number of folks who only got 30 as the company is eliminating a large portion of the company.

A place that I worked at two years ago laid off 2/3 of the company just 49 days after I'd joined. They weren't as brain dead as the federal legislature so they simply framed it as temporary for five months which falls under the requirements of "WARN."

I've never heard of severance in the U.S. being mandatory or illegal to withhold if say, they did it for every other employee that left the company prior. I think unemployment benefits takes care of this.

I've been through the process twice, and in neither case was there any pressure to sign the document. In both cases I was advised to speak to a lawyer if I was unsure or uncertain about anything, to feel free to contact them with any clarifications and in one case I expressly forbidden from signing it in the HR office and told to mail it back.

A lawyer would tell you that such a clause is common, is somewhat enforceable, and rarely enforced. The situation primarily being avoided is airing specific, proprietary, disparaging information.

I'll tell other engineers that two weeks' salary is a piddly amount for the company for you to surrender such rights

So it isn't worth just moving on with your career for, say, $3k (assuming a moderate $80k/yr salary)?

Seems like Internet bravado to me. I click okay on all sorts of terms of use agreements for my PS3 just to play some games.

It might be worth it, and I might sign it. I was just trying to get the point across (and may have failed) that the company will probably be as willing to give you 4 weeks as to give you 2 weeks.

A PS3 contract is signed under much different circumstances. It's a contract of adhesion and it's most likely to cover PlayStation's ass from people suing them for all sorts of bullshit reasons, not to enable them to sue you because you gave a bad review.

The company CEO might have something snap in his head and decide that the reason the company failed is that his ex-employees were stealing stuff. I've seen it happen twice, fortunately never to me.

On this note, I would be totally okay with signing a "this firing was not illegal" contract for a few weeks severance. That's more of the company wanting its ass covered if you try a bogus wrong-termination suit, which I totally understand.

tldr: I think "this is so you/someone else can't sue us" clauses are much more ethical and reasonable than "this is so we can sue you" clauses.

Will wasn't writing about "agreements", he was explicitly making the point that for him it is indeed not worth $3k to agree to lower his ethical standards. He was writing about the non-disparagement clause, not the contract. Maybe you didnt't read it carefully, like you didnt read your PS3 EULA, because most software EULAs, including the ones from Sony, do not have non-disparagement clauses. Employment contracts have also enjoyed a lot of time and exercise in court, and have been routinely enforced. software EULAs have not, and are widely considered unenforcable. So, your analogy doesn't really work.

Maybe you didnt't read it carefully

You're accusing me of not reading something carefully when you're not considering the context of the quote to which I was responding -- which was specifically talking about the previous poster's advice to PROGRAMMERS?

and are widely considered unenforcable

Unless I was planning to really go after my ex-employer as some kind of vendetta, I wouldn't worry about a Non-disparagement agreement's enforceability. They're no more of a worry than non-compete agreements.

Non-compete agreements may not be the best example for you. They can have large impacts on employees (http://web.mit.edu/newsoffice/2011/non-compete-agreements-10...) and far-reaching effects on entire regions (http://www.techdirt.com/articles/20071204/005038.shtml).

That's precisely why they are usually legally worthless, where they act as a restraint on trade for the individual concerned.

The stuff I agree too just to play video games, I'm surprised I still have legal rights sometimes...

South Park made a whole episode about this (re: Apple's terms of use) a few years ago:


That is where good intentions for wise use of time go....


I had a friend who was a contract lawyer, and pointed out several clauses in my wireless contract and my internet contract. It was pretty eye opening.

Needless to say, you'd be surprised what you agree to when you sign contracts:

"Please be aware that we may change your wireless device's software, applications or programming remotely, without notice."

> "Please be aware that we may change your wireless device's software, applications or programming remotely, without notice."

Which mean they update your modem (which is not yours btw, it's a part of your ISP infrastructure) for you, not that ominous IMO.

Speak for yourself; I own my cable modem outright. But I do understand (and I don't care) that the ISP can essentially reprogram that device, since that's how the technology is intended to work. That device is just feeding into a router I control, anyway.

If they want to update the modem/baseband, why not just put "modem" or "baseband"? And why do they have to do it without notice?

unless your talking about your wireless carrier, in this case, Verizon.

I'm not aware of anyone going to court over licence agreements on games.

I am aware of very many court cases involving contracts of employment. Some of these cases are famous and reported in national newspapers, but many of them are everyday cases.

"Just sign it" is popular but terrible advice for some contracts.

In this case, it is totally normal. In return for a payment, you agree to keep quiet. I don't know of any other firm that gives severance without this. What is abnormal is that someone is being asked to sign it for 2 weeks of salary.

Yes I'm with you. First thing that happens is i) BOD tells management to do layoff's to preserve cash then ii) Legal talks to outside or inside counsel and gets the generic playbook for layoffs (including termination template language) then iii) CEO, CFO and VP of HR discuss actual terms of severance. Maybe even one gets simply two weeks. Maybe more senior (time or responsibility) get 3 or 4 weeks etc. Either way decision is determined and married to boilerplate RIF template. iv) String of events leads to a writer ($50,000 a year? $75,000 a year?) looking at a paltry two weeks of revenue in exchange for disparagement clause. Seems completely out of whack with his beliefs and the amount being offered.

And frequently the # is negotiable, though it can require a lawyer to do the negotiating. Some work on contingency. (I've never been through the process, but have seen enough layoffs to have watched people negotiate their #s)

IANAL, but is that clause even enforceable if tied to severance? Seems like a reasonable argument could be made that signing such a clause when tied to severance negotiations would fall under "duress" from a legal standpoint.

If the company says "sign in the next 5 minutes or else" than maybe. But the company wants you to sign.

And the lawyers who crafted up the contract don't want it to be thrown out for some stupid reason, so they will advise your (about to be ex-)employer to let you take it home to read it and think about it.

The opposite. To be legally enforceable each party to a contract must be receiving something of value.

Duress would apply if someone is forcing you to sign.

Just wondering - particularly as I have no experience of the US employment market - but is it common for soon-to-be employees to negotiate a standard severance package into their contract of employment?

No, not in my experience anyway.

Of course asking for this agreement implies that they have done something wrong :-)

"so mr employer you admit you have done something illegal either by omission or commission and you want me to sign a compromise agreement?"

Well I am sure that my lawyers will be interested can you let me who in hr is your GC (lawyer) and I am sure we can sort something out or I will settle for 6 months right now.

No, it implies that they are worried about what you might say or do. And possibly not specifically you, but the odds in general of some employee or other deciding to cause a nuisance, whether or not they deserve it.

Or they have an overzealous HR person or lawyer.

Or any number of other things.

Of course they might also be a bunch of criminals, but I don't think an agreement like that implies anything in either direction.

Well they asked first so "no smoke with out fire eh" putting it in writing gives the impression that they have something to hide.

Over zealous/incompetent HR is probably the correct answer.

Seriously if you where a cop questioning some one and they blurt out I want to do a deal at the start of the interview what woudl you think

Normally in NCIS when the person getting interviewed by Jethro asks for a deal - they are the perp.

If you are leaving employment on unfriendly terms, it will serve you well to sign nothing without consulting an attorney (preferably one specializing in employment law and contracts).

(This, of course, does nothing for what you may have signed upon becoming employed, nor what they may have shoved under your pen while you were employed.)

Generally, the incentives are relatively small, and what you are giving up is potentially rather greater. This is why they attempt it -- risk reduction. I'm aware of proposed agreements that, for a few thousand dollars in a one time payout, cause the formerly employed to abrogate supposedly all rights to sue, on any basis.

Granted, that may not be entirely enforceable. But it's another considerable hurdle to surmount if and as you feel and determine yourself to have been wronged. First, you have to attempt to break out of the binding arbitration -- if any -- that such contracts impose.

I'd rather have a few expensive suits and management sweat a bit more, if nothing else, in such circumstances. Tie them up with more paperwork and tracking. If nothing else, it helps to keep them on their toes and perhaps less likely to screw the next guy.

And yes, again, in such circumstances, somewhat of that perspective is prescribed. No matter how well you may have gotten on with your co-workers and immediate management, the company is not / no longer your friend.

You will feel and manage much better if you have prepared yourself for such an event, however unlikely you may currently consider it to be. Have enough cash and liquid assets on-hand to ride out such a period of unemployment. Don't assume you will have unemployment benefits when making such calculations; if a business decides it wants to screw you, they can at least delay the granting of such -- though you should contest such a tactic. (And, in that regard, documentation is your friend. Keep printouts of relevant material. If you feel things are going south, keep a separate, datestamped journal documenting specific events in detail.)

If you have assets on hand, you will feel less motivated to take such a payout, especially not one that is rushed upon you with a very limited window for consideration. You may also decide it is worth the money to at least consult with an attorney (that you are paying by the hour, not on contingency) for an independent and professional opinion.

Many people on HN are at least ostensibly "professionals". A few thousand, for a regular, full-time employee, should not make or break you. Look towards handling your end of such an employment arrangement professionally.

Even if it costs you a bit of money, you will likely feel much better about yourself and how you've handled the situation.

And that self-esteem, aside from any (frankly, unlikely) favorable financial outcome, can pay off significantly as you move on with your life.

Just my opinion...

That depends on the jurisdiction. Ontario has fairly strong employment standards, including documents on severance pay and termination pay.

No disparagement clauses are a lot like non-compete clauses. I would never sign one, but at the same time, I am reluctant to speak poorly of a former employer or to go into direct competition with former colleagues.

I want the right to do those things, but I don't actually want to do them.

Now of course, they always say, "Yeah, maybe not you, but somebody." To which I say, "That's why you took so long to check my references before hiring me. I'm no longer somebody. And if it mattered that much, you should have put it in the employment agreement so that I could have declined the job before taking it."

The only people who should feel morally compelled to sign no-disparagement clauses before accepting severance are people who are being fired for leaking confidential information on the job.

I'd sign a non-compete clause for enough money in return. Same with a non-disparagement clause, especially if I had nothing bad to say. "Give me 6 weeks severance, instead of 2. Then I'll gladly sign it."

For me it's not about the amount of money but rather the freedom of speech restriction that you must remember for the rest of your life.

Human memory is a rather shady thing. How many of the university lectures do you still remember? Now imagine yourselves 10 years down the road, at a beer with other people getting asked about an event related to that company. Will you assume the rights of speech you forfeited for the rest of your life and remember them every time you will have the chance to speak differently?

When you're 80 and possibly with Alzheimer -- does that count too?

For enough severance money I would hold them in good regard! I'd take a chance on letting something disparaging slip to someone who could get it back to them with proof; odds of that are nil as I rarely talk about my past jobs.

Everyone has a price.

What offends me personally is the offering of money in exchange for signing the agreement.

If I had a choice to sign the agreement or not, of my own free will and with no incentive, I may actually do so. Like you, I have no particular desire to speak ill of anyone, deservedly or not. Time spent disparaging a former employer is time which could have been better spent moving forward.

But when you offer me an incentive for signing the contract? It makes me wonder why these rights I'm giving up are worth so much to the company. And feeling like I'm being bribed or pressured to do something is one of the best ways to manipulate me into not doing it, just because I'm so stubborn :)

Contract law requires there to be "consideration" (usually money) given when asking you to give something up, otherwise the contract can be found invalid. Please stop taking business matters so personally, they aren't trying to offend you.

If you're asked to sign one when you're hired, the consideration is the job itself.

If you're asked to sign one when you leave, depending on your contract, any severance package might be considered consideration.

Think of it as the opening of a negotiation. They want you to do or not do something, now what do you want in return? You get bribed for working, after all.

But when you offer me an incentive for signing the contract? It makes me wonder why these rights I'm giving up are worth so much to the company. And feeling like I'm being bribed or pressured to do something is one of the best ways to manipulate me into not doing it, just because I'm so stubborn :)

You're looking at it the wrong way. There are two ways the company can approach it. The first: we need to let this person go, but we don't want to fuck up his career and personal life and we don't want him fucking up ours, so we'll give enough severance to cover the gap and a positive reference. And no lawyer will let the company offer severance without nonlitigation and nondisparagement. The second: fuck this guy, toss him overboard. Usually, when a good company does a layoff, it's the first. That's why they offer the severance. In part, it's to keep you from saying bad things about them. But it's also, at good companies, because they know it pays off in the long-term to have the people they laid off still feel some good will toward them. Careers are long.

Sure. And I feel more goodwill when the company doesn't try to bribe me in to not talking bad about them. As it says in the article, any company that can't survive some disparagement is maybe a company too fragile to survive anyway.

You say you want the right but never expect to use it. If that is the case it is probably not worth very much. Perhaps they can pay you something for it...

You don't have to sign severance agreements that give your rights and employers don't have to pay you severance over what is required by law. If those rights are worth more to you than the severance don't sign.

You say you want the right but never expect to use it. If that is the case it is probably not worth very much.

I know you mean well, so I say this without trying to be antagonistic and start up a "debate." The thing is, this is from the world of principles, and despite what you may have been told incessantly, there is no direct way to value a principle.

The whole idea of selling this principle breaks down immediately if you imagine the President saying this to me:

"We're paying you this money so that you can keep quiet about us." My response would be, "Why pay, you can have that for free!"

From an economic standpoint, it probably costs me far more than they would consider paying to disparage them. I could write a witty blog post, get some HN karma, maybe sell a few books, and feel grand. But forever afterwards, I'd be going to job interviews, or trying to raise money for a startup, or whatever, and people would be saying "He's a nice guy, but I worry that he'll write about our private business."

If we sit down and think of this thing in dollars and cents, they'd have to pay me handsomely to disparage them. The whole thing is ridiculous. I'm not insulted that they want to go through the exercise of asking and being rebuffed, but by response is always going to be, "How about you pay me the severance, and I don't sign this, and then I go about doing what I've always done, which to date has been exactly what you want."

And then the President says, "Why should we pay?" And I counter, "So that I can tell anyone who asked that you have been fair to me, instead of saying that I have nothing to say about how our business concluded." And maybe that is worth something to the company, maybe not.

But really, you can't buy principles. If you could, they weren't principles, they were "wouldn't it be nice if it was convenient to act this way" ideas.

You see this differently than me. I see it as people coming to an agreement if both feel it is mutually beneficial. You (and the author of the NYT piece) see it as surrendering an priceless principal despite your strong resistance ever actually exercise it.

I think you (and the NYT piece author) take a somewhat extreme position but I certainly support your right to take it. I hope you would allow others to see this differently and sign these agreements if they prefer the money.

I have serious misgivings about this sort of "hush money". In general, I'd prefer not to interfere in private contracts, but this one has such serious implications for everyone else. In particular, it can end up creating an information imbalance, enforced by the courts, that allows a certain group of people to remain "in the know", with everyone else unaware of what is going on.

I read a while back about a law firm that had evidently done something very dodgy - representing an inventor and the firm purchasing the invention at the same time. The engineers were eventually paid a settlement, but part of the settlement was a gag order - nobody was allowed to talk about what had happened or the amount of money paid. This included, of course, the press.

Now, what do you want to bet that well connected lawyers, upper managers, and so forth, are able to access the terms of this deal - even if they weren't involved? What are the odds that an inventor who approaches a law firm will know what transpired and why? The imbalance of information will put the inventor at an overwhelming disadvantage.

My gut feeling is that there is a third party in all of this - me. Well, me, and all the little people. I understand the need to enforce contracts within reason, but I'm having a tough time seeing my own personal interest, or the general public interest, in enforcing these "stay quiet" contracts.

I'd also point out that this isn't really a situation where we are prying into a private transaction and forcing people to talk. Our courts are actually enforcing the gag rule that keeps most of us in the dark about what is really going on out there. My misgivings about regulating private transactions aren't as strong when all we'd need to do is stop enforcing contracts that are clearly against the public interest [1].

[1] I am still thinking this through. I'm not absolutely sure this is against the public interest, or, even if it is, if we the courts should refuse to enforce the provision. It's how I'm leaning, but I have a sense that there may be more to this. I am generally glad that courts won't enforce certain terms of contracts, such as very long non-compete clauses and the like...

There is a legal doctrine under which courts will refuse to enforce clauses that are against public policy. Some examples include: racially restrictive deed covenants, inheritance bequests contingent on remaining unmarried, and contracts where one party agrees to perform an illegal act.

In this specific case, the non-disparagement clause would probably be construed not to cover things like testifying before a legislative body or communicating with regulators, even if those communications were voluntary rather than subpoenaed.

> In general, I'd prefer not to interfere in private contracts...

One could argue that such cookie-cutter contracts are no longer "private" if they're presented to the employee as the industry's standard operating procedure. I don't know if such an argument would hold legal weight, but there's something wrong with an agreement where it's expected that only one side gets to decide what's being agreed to.

The article works against your point. Ultimately, he didn't take the money. We aren't in danger of living in a world where people can't talk about work. The vast majority of employers wouldn't be able to afford such a clause.

We ARE in danger of living in just such a world. Extremely few employees happen to write for the New York Times and can hope to be paid the amount of a severance (or at least some reasonable portion thereof) for writing an article about severance clauses.

If I don’t agree to this nondisparagement clause, I will not receive my severance — in this case, the equivalent of two weeks of pay.

For two weeks pay, I would not agree to anything. For two years pay, I would consider it.

I had no idea that professionals were given such ridiculous offers and expected to sign off on them. At my last job, I was guaranteed 1 year of severance in the event of losing my job. Fortunately, it never happened. At my current job I will get a relatively modest 24 weeks severance if I lose my job. If it ever comes to that, I plan on doing what some of my former co-workers did. Refuse to sign the "release of all claims" unless they give you a year severance and history has shown they'll give it to me.

Let me suggest with all respect and much jealousy that your situation may not be common across employeers or jurisdictions. And that many people may not have the finances or flexibility to decline two weeks pay, unless they already have another job (or lots of work).

What you are discussing as an expected normal sounds like some utopian fantasy from here in Georgia, USA, an "at-will" hiring and firing state.

Let me suggest with all respect and much jealousy that your situation may not be common across employeers or jurisdictions

I have no college degree, work in the suburbs of a second-tier Northeastern US city but I have 20 years experience in IT.

And that many people may not have the finances or flexibility to decline two weeks pay

I respectfully submit that saving for an emergency fund might be their top priority while they are gainfully employed then. My goal since I was 18 years old was to have 6 months pay in the bank and it wasn't long before I had that. Since my parents didn't have two nickels to rub together though, I didn't have much of a choice and absolutely no fall back if I got into trouble so this was kind of a necessity for me.

Also, I'm surprised that anyone in IT is afraid of losing their job. Currently I work 40 hours per week at the investment bank I work at full time and 20+ hours per week doing side programming. Honestly I could work 24 hours per day and get paid for every hour if I wanted to. There is nearly infinite work for programmers right now. Losing your job is scary, no doubt, but in reality if you are a decent programmer you don't have much to be scared of.

Agree entirely on Emergency Fund, though I'm not doing so well on the front myself. Easy credit has many of us confused on that front and it's a painful lesson.

And well, not everyone on HN (or Earth) is a fabulous developer, more's the pity :D Plenty of IT positions are cog-like, in the eyes of management and leadership, and people have to fight to get entry-level helpdesk type jobs around here.

>And that many people may not have the finances or flexibility to decline two weeks pay

2 weeks is a ridiculous severance package. If someone is desperate for 2 weeks pay, they should really work on saving up an emergency fund. It's unlikely the 2 weeks really makes a huge difference. Either they get a job immediately, or it takes awhile. If they get a job, it doesn't matter. If they don't, they are still screwed in a very short time frame.

For two weeks pay, I would not agree to anything. For two years pay, I would consider it.

I think you have it exactly right, this is an opportunity to counter-offer. Find out how many months of salary the non-disparagment clause is worth to the company.

The choice of refusing money would be nice: Unfortunately, this type of severance isn't only happening in professional circles: Hourly call center employees (I'm sure among others) are being asked to sign the same type of thing, and these are $10-$11 an hour, high turnover jobs. This situation completely changes the power balance.

No it doesn't, two weeks pay at that salary doesn't get you anything unemployment won't cover.

If you can survive the gap between getting paid and getting the unemployment, which is why most people will take it. I would do the same if I were back in the states considering the job market. Who knows when I'd find another similar paying job.

Receiving unemployment happens very quick these days, typically under two weeks.

What country, industry?

That was in the US, the call center multiple family members worked at - student loan collections.

> At my last job, I was guaranteed 1 year of severance in the event of losing my job...At my current job I will get a relatively modest 24 weeks severance if I lose my job.

In what country are you working?

I have never heard of such a severance package for a non-executive. Do you really think that your situation isn't just a fluke, and that you could replicate this package elsewhere?

I wouldn't sign that any more than I'd sign a contract that gave the company everything that I produce in my own time. Both are attempts by the corporation to dissolve my agency as a human being.

The only right answer is no.

No they're not. From Wikipedia: http://en.wikipedia.org/wiki/Consideration

Consideration is something of value given by a promissor to a promisee in exchange for something of value given by a promisee to a promissor. Typically, the thing of value is a payment, although it may be an act, or forbearance to act.

Paying you not to speak is no more an attempt to dissolve your human agency than paying you to speak. Assuming you have nothing disparaging to say, not agreeing is foolish.

> Assuming you have nothing disparaging to say, not agreeing is foolish.

That sounds an awful lot like "If you've done nothing wrong, you have nothing to fear", a statement which I know is very much false.

What you think is disparaging may be very different from what your employer thinks is disparaging. By signing away your rights using ill-defined and imprecise language, you are only opening yourself up to potential legal troubles later.

I could flip your final statement on its head: assuming you don't desperately need the severance payment, agreeing is foolish.

'That sounds an awful lot like "If you've done nothing wrong, you have nothing to fear"'

Then your pattern matcher is giving you a false hit.

Your statement is about a government imposing unreasonable searches and seizure of you and your personal effects for the illusion of societal security.

The subject under discussion is about exchanging value for value in a voluntary transaction with you and a non-monopolistic employer.

[edit: added "voluntary"]

I don't see a false hit.

What's wrong?

What's disparaging?

If you've done nothing wrong, you have no reason to fear being searched for something wrong.

If you've nothing disparaging to say, you have no reason not to agree to a non-disparagement clause.

I don't see how unreasonable search and seizure or whether the employer is monopolistic or not even enter into this.

The whole issue of "if you have nothing to hide then you wouldn't mind the government looking into x" is a question of basic human rights. It's a question of whether or not the government has the right to invade your privacy even when there is no suspicion of wrongdoing. In a society that believes in the "nothing to hide" principle, citizens have no choices. They have no rights to privacy. They are trapped.

The "if you have nothing disparaging to say, don't worry about it" is a question of making a choice. If you choose to be able to disparage your employer in the future, don't take the severance. It would be your choice. If you choose to be careful of what you say, then take the money.

Monopoly affects whether or not you have choices in a society. The government is a monopoly, a monopoly that has the right to physically force you into compliance. Because of that simple fact, everything the government does or is allowed to do requires much greater scrutiny.

Maybe you don't have anything disparaging to say now.

Maybe it comes out that your ex-employer was engaged in fraud. When you hear the news on social media you say "wow, Joe in accounting always did strike me as funny." You didn't mean it as disparaging. But the company does.

Keep in the larger context in mind:

Your former employer (and anyone else you have done significant business with) can always find some flimsy basis for a lawsuit that will cost you several dozens of sleepless nights and $10k-$20k in lawyers fees, before it is thrown out by the judge.

What is stopping the other guy is they are not pissed off enough to throw $50k-$100k in the toilet for the lawyers fees and distraction to punish you unjustly.

Not signing does not actually protect you from baseless suits, if you run your mouth.

> Your former employer (and anyone else you have done significant business with) can always find some flimsy basis for a lawsuit that will cost you several dozens of sleepless nights and $10k-$20k in lawyers fees, before it is thrown out by the judge.

I think this actually cuts both ways, since companies usually have deep pockets and are responsible to investors. This is the only reason companies offer severance in the first place -- it's cheaper than dealing with the lawsuits.

I think you should take a look at what kind of things have been deemed to be "disparaging" in case law before you make that statement.

> Assuming you have nothing disparaging to say, not agreeing is foolish

The article stated the author would have to give up his lifetime right to make "any negative or disparaging statements (orally or in writing) about the Company or its stockholders, directors, officers, employees, products, services or business practices". That's a huge thing. Let's imagine the company you worked for starts selling organs of little orphans for transplant. You are not allowed to criticize them for that. Let's say they start a fracking operation that contaminates the water of millions of people. Or irresponsibly build a nuclear reactor that melts down a week later. Imagine one of the stockholders is Carl Icahn. You'll never be able to criticize him again. Or Donald Trump. Can you imagine never being able to make fun of his hair? Imagine then your cable company buys one share of the company you worked for. Now you can't criticize them if your TV goes out because they are a shareholder. Imagine your ex-wife learns about your contract and buys one share.

You get the idea.

I could be wrong but I think what you'll find is that a court would not uphold that agreement any further than the original amount of severance pay was worth.

That would be tantamount to signing a release to play in a softball league and then one of the other players attacks you with a bat. So, you can't get your hospital bills covered, now?

If you sign the agreement and then renege, it's not like they can sue you for a million dollars in damages if your "disparaging" remarks are true.

> it's not like they can sue you for a million dollars in damages if your "disparaging" remarks are true.

They can sue you for slander/libel with or without you having entered into the severance agreement. If we're talking about getting sued for entering and then breaking the agreement, we're probably not talking about "millions of dollars" but rather whatever the contract specifies the penalty for breaking the contract would be (and this is still up to a court to decide what's actually enforceable).

You can make fun on Donald Trump's hair or criticize a product from the consumer end (the cable company example) after signing non-disparagement.

What it covers is what you say about the company in the context (which can be broadly defined) of your being an ex-employee. If you say, "I worked at Time Warner Cable and it was run by idiots", that violates nondisparagement, because you're saying it as an insider. If you criticize the product not under your real name, or in private while not representing yourself as an ex-employee, you're probably fine.

Maybe you don't have anything disparaging to say right now. But that may change dramatically in the future.

Crass example, let's say you worked at a bank, parted on good terms, signed such an agreement. A few months later it turned out the bank had been laundering billions of dollars of drug money. This has no affect on the agreement you signed. Still got nothing disparaging to say?

I don't think that employers pay any premium whatsoever for these extra clauses. Have you ever heard of jobs with these conditions being paid more?

So exactly what "consideration" are you talking about?

The consideration was the severance payment, which in the article was worth two weeks of salary.

Are you really asserting that employers who don't ask leavers to sign gag-clauses usually pay zero severance??

On the contrary, I assert that severance pay is normal with or without the gag-clause. So the employer has put the "value" of signing agreement at zero.

Severance payments are not legally required in most U.S. states. The company might usually make a severance payment (because ex-employees usually sign whatever the company asks them to), but if you don't sign their agreement, they won't give you a severance payment. So the cost of not signing is whatever the severance was worth.

You are assiduously avoiding my point. I said nothing about any legal requirement to severance pay. I asked you about what is usual. If there is no difference between the usual severance pay from gag- and no-gag-employers, then employers value the gag-clause at zero.

You are correct -- if the employer was providing nothing more than their existing legal obligation, there was no consideration on there part, and thus no contract. The point of course, then, is that signing gave away nothing.

You both are right! (yeah, yeah, cop out...)

Listen to this: http://www.econtalk.org/archives/2013/06/kling_on_the_th.htm...

I signed a contract that gave my employer the right to everything I produced at my own time. Fortunately it was an hourly job and I kept records, and I found out very fast that HR really didn't want to pay me overtime for anything. So they didn't have to pay me hundreds of thousands of dollars extra and I got to keep my work.

Now, had it been a salaried position, I would have been far more concerned.

Such contracts ("produced on own-time belongs to company") are common at large software companies. If you are in California, such a contract may not hold water. Any one have experience with a big co (outside Cali) where they were able to negotiate this clause away?

I've never agreed to these since graduating university. One time someone tried to get me to sign that anything I invented for the next 3 years that was related would be their property.

I've found three good pushback techniques:

1. "My [insert family member] is a lawyer and I haven't seen this clause before, so I'm going to get her to read over the agreement." Next day I just say that they won't let me sign it. Why make up a family member as a lawyer? Because to push back or hire a lawyer is viewed as an aggressive move, while affably showing deference to your family member isn't.

Later in life when the job / contract offers started getting bigger:

2. "I don't sign things I don't intend to follow and I'm going to be building things in this industry on my own time for my own profit." Strait up confidence along with the fuck-you attitude to back it up by walking away. I'm never going to work for someone that is that dense and short sighted anyway.

Every single company has allowed me to just strike out the clause and have us both initial it.

Those are good techniques. What's the third one?

I'm really bad with off by one errors haha. My last technique is if they verbally agree I follow it up with an email of them agreeing that I'm allowed to work on my side project. This was actually during a coop term, which is why I forgot.

I can tell you that EA (Electronic Arts) won't hire you without this clause. Their line was "if you work for us, you shouldn't really have time for side projects." I kid you not.

Yuck. This is the sort of thing that is nudging me from "I never ever want to work for EA" to "I no longer want to buy things from EA"

This is what pushed me over the edge.


To be fair, the whole EA Spouse thing happened quite a while ago.

And I haven't purchased an EA product since.

And that's fine and dandy, but chances are that the company composition is largely different today than it was when EA Spouse occurred. I understand that there is more to a company than a collective of individuals, but it might be a little misleading to still make EA-related decisions today based on the EA Spouse incident.

A tsunami is composed of entirely different molecules of water as it travels, but it generally retains its nature and force. If you want to stand on shore and say, "Hey, let's not assume that it's still the same when it gets here," I guess that's your prerogative, but I'll be watching from the hills.

Water molecules don't tend to have their own unique and distinct set of beliefs and philosophies regarding a near-infinite range of ideas, a structured hierarchy allowing for an uneven distribution over power amongst themselves, nor the ability to actuate their will upon the world around them.

This isn't to say that enormous, profit-hungry companies will never tend to act like tsunamis, but I don't know that your comparison is generally valid.

Ever watch The Wire? The whole point of it, at least in my eyes, is that often, the villain is the system.

It is perfectly possible to see a company change every person in it and still have exactly the same behaviors, especially the pathological ones. I understand that from the employee's perspective, managers and execs seem to have near-infinite power. But from the perspective of any one of those people, they are vastly outnumbered; trying to change organizational culture is at best incredibly difficult.

Waves tend to hold their shapes. Culture is a wave through individual humans. Or, perhaps more accurately, a standing wave through which humans pass.

No, I'd say their track record is spot on.


Well, to be fair, given people like you, that's really no surprise. That's not to save that they necessarily do not deserve it.

"Well, to be fair, given people like you, that's really no surprise."

A personal attack? Can we save the ad hominems for somewhere else? I fail to see how being an informed consumer is a problem. I care how/where my dollars are spent.

It looks like a personal attack, but it's not.

If you read the post you linked to, it quite reasonably says that EA is not the worst employer to work for. It's just that the Internet crowd thinks that it is. And what GP said was that this crowd comprises of people like yourself, which again is reasonable observation, not an attack.


My point is that, given that so many people love to hate EA (for better or worse, and regardless of whether their reasons make sense or not), it's really no surprise that EA is continually "awarded" such "honors".

Maybe you, knappe, have other (better) reasons to hate EA than those that relate to some ten-year-old drama that (probably) didn't personally affect you. Maybe you don't. But there is an Internet full of people who will probably never stop hating EA, no matter what.

One more to add to the long list of reasons not to work at EA.

I'd love for them to try this in a EU country. (EDIT: Except the UK, which, in its attempt to become the 51st state, have an exemption from substantial parts of the relevant regulation)

"So you intend to violate the Working Time Directive? Because if you don't, I will have lots of spare time outside of my contracted hours".

Of course if they'd given me that line, I'd told them that if so they'd need to at least triple whatever offer I might have previously considered.

You can always opt back in to the Working Time Directive. You can do it at any time, and the employer is not permitted to discriminate against you for your choice.

That's awful. Are they paying 24 hour work day then?

Even if you are in California, it's a good idea not to sign such a clause. You might think that CA 2870 would trump a signed agreement, but 2870(a)(1) might hurt your chance, especially with large companies like Google that have involved in many areas of technologies.

For reference, CA Code 2870: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&gr...

I'm in NYC and was able to strike it off. I just explained to the company that I enjoy working on iOS apps as a side hobby, and wouldn't want that to be a problem. They removed the clause from the contract, it wasn't a big deal. My company isn't that big though (~30 devs).

Just be careful if you ever work on a side business or project that is similar to what your employer does. They can claim your IP rights under some circumstances by claiming it was what they hired you do to. And NEVER work on it at work or with work resources. Never.


Thanks for your data point. But I presume this was a small to medium sized company? At Big Co. HR is a faceless organization and I'm curious if people have succeeded negotiating with this beast?

I'm also curious: did you negotiate this after they offered you a job? It seems frustrating to get the job first and then turn it down because it never met your requirements? Is it reasonable to ask a potential employer about their own-time policy during the interview phase?

I've pushed back on contract terms with a large company that had included a non-compete clause not enforceable locally. Turns out they had an alternate contract which met local statute, and had used it in previous hires / mergers. Still makes me itchy to sign such terms.

When Marissa Meyer was hired by Yahoo, I found it interesting that her employment contract included some pretty familiar language:


In the fictional novel "Lost Boys" (the author's name tends to start flamewars on HN so I'm not mentioning it), a software developer travels across the country with his family to a new job and is presented with a horrible IP contract. He sweats and is nervous and anxious about it all weekend, and on Monday he tells his boss he won't sign it. The boss shrugs and pulls an alternate contract out of a drawer and hands it to the developer. They give the first contract to people who won't bother reading it, and the second (read: "fair") contract to anyone who has an issue with the first.


Yeah, some good books, but pity about the person.

I actually would sign that contract if the terms were good. For instance, suppose a company said "we're actually just interested in hiring really smart people and largely letting them pursue good ideas. Just keep us posted on what you're working on, and what business value it might bring. We will pay you a large, stable salary, and we also provide a very substantial share of the profits to the innovator". Under terms like that, I can see how a company would be kind of peeved if an engineer said, oh, my good ideas were the ones I had and worked on at home.

BTW, this is an unusual hypothetical, and not really what you're talking about here. What you're mentioning is the sort of "you're a coder for us, we will give you projects, you will need to complete them, we expect you to work on them 40+ hours a week, and oh, also, we own all other tech related projects that you might happen to do while you are employed by us".

I fully recognize that the #2 is far more common than #1.

Heh. Almost two years ago I was fired from a fairly prominent internet services company... Ah, who am I trying to avoid? It was Akamai.

I speak ill of them all the time. Not about their impressive infrastructure and engineering, or the scores of brilliant people I had the privilege to work with. No, it was more my experience with the corporate culture and the pervasive games of "power politics" that anybody who wasn't a manager was constantly subject to. Unfortunately I ended up in a position to be the patsy for a director's bad decisions, to make a long story short.

Indeed, I was asked to sign an agreement in exchange for money, and because of the timing of things (newborn baby 2.5 weeks prior) I needed the money more than I needed the freedom to speak my mind about the situation. And it really wasn't very much money, just like in the linked article.

However, despite sending the signed agreement certified mail, the money never showed up, their HR department claims it was never received, and the money didn't end up mattering so much as I was fielding offers within a month and began my current position in short order.

Since then I've received several letters from them, asking for my signature on various things and I refuse - There's simply nothing they can do to me. But I know quite well that I'm lucky. I've got a skill set and experience that puts me in demand, and anybody who asks why I was fired can get a simple answer: "Here's my LinkedIn profile, take note of the slew of recommendations I got within a week of my termination."

(I will add, my subsequent contact with their HR and legal department did have me worried about things for a while - not to mention various thinly-veiled verbal threats made by my former director before and during my termination, in case you're wondering just what kind of politics and culture made me dislike the place)

After having to work with Akamai as a vendor in several positions (it being out of my control to use a different vendor), their corporate attitude doesn't surprise me at all. Apologies for your experience.

+1 I've had to work with them a few times, Akamai has built up crazy infrastructure and I'm sure they have awesome tech behind it but getting them to actually help you as a customer if you're not a Fortune 500 company is useless. This is even when I was working at a company that was paying them in the 7 figure range per year.

No apologies needed, but thanks! I learned some valuable lessons.

The lessons you learned then are the ones I'm learning now.

Then my sympathies to you. But people who've been in this industry far longer than I have assured me - it's pretty damn normal.

Oh, and people in other industries have told me it's par for the course everywhere.

This is why networking is so important. That's my main advice to give. Meetups, user-groups, etc... get involved in them and do your best to learn, interact, and "level up" (to steal a brilliant recruitment/marketing slogan from the big A)

A friend summed it up like this:

Modern employment. Can't speak freely before you have a job (social media vetting), can't speak freely in your own time while you have a job (clauses in your contract), can't speak freely when you no longer have a job.

You can speak as freely as you want - there's just a difference between public and private speech. It's your own choice to publicize your opinions on social media and the internet.

I wouldn't say having to confine your speech to private quarters where word can't get traced back to you is being able to "speak freely". If you can't write a newspaper letter to the editor, or post an update on Facebook, without your creepy employer stalking you and disciplining you for it, you aren't able to speak freely.

At any point in history, if you wrote a "Letter to the editor" disparaging your company or boss, you'd most likely get fired. How is posting on a public web service different?

Because now you risk your employment by writing a letter that isn't about your employer at all. Anything your (prospective) employer doesn't like is verboten. So people deliberately circumscribe their speech.

My 2 cents... The non-disparagement is a trade. You trade not saying anything bad about them publicly, and they agree not to say anything bad about you during a reference check. You get a positive (or perhaps generic "He worked here from X to Y, that's all we can say") reference, and they don't have to worry about a book coming out trashing them. The amount of cash is secondary. The real thing is, if you want to remain on good terms with them, you sign it. If not, you don't.

I can't imagine a company offering severance nowadays without including this. 2 weeks may be negotiable, but this won't be.

The funny thing is the article is squarely aimed at the non-disparagement clause which to me is not very interesting. But the big deal is actually the "release of all claims" clause. Essentially they're trying to get a "get out of jail free" card for any unlawful actions they may have taken as part of your termination.

Even if they did nothing unlawful (ex: terminate everyone over 40 years old to bring in younger cheaper workers, terminate everyone of a particular race or other protected class, etc) terminating someone can often bring frivolous claims that can cost the company hundreds of thousands of dollars. Assuredly, their offer of two weeks severance is a "it's worth a shot" attempt to see who is dumb enough to take it.

And "release all claims" is precisely why I didn't sign for a paltry two weeks severance at one ex-employer. Don't speak ill of them? Fine, whatever, I'm content to never speak of you again, positive or negative. But let you off the hook for when it occurs to me weeks later that you have illegal hiring/firing patterns? Umm, no, not for a measly few grand. (And though a solid case could have been made for unlawful termination, I left it be because I was a month from quitting anyway.)

Right. They need the signature to get free of any wrongful termination suits. Though, the non-disparagement clause pretty much ties in with that, I suppose.

The mutual non-disparagement did not appear to be part of the original agreement, and was only mentioned as a possibility. Such agreements are usually asymmetric in who benefits and who bears the responsibilities, and the company dangles the severance pay to put itself in the superior position. I've never heard of a company offering any such thing, at least not as a standard part of a layoff offered to all affected employees.

Actually, legally, they cannot say anything more than "He worked here from X to Y, that's all we can say". You don't need any agreement from them.

IANAL, but I believe you are technically wrong that it's illegal. Saying more, has however, been used against companies in civil court, with damages awarded, even when the 'more' said was completely accurate.

This is simple misinformation. Most places will only say that much so as to limit unnecessary liability but, in most locales, an entity is not explicitly prohibited from providing additional information with respect to performance, etc.

Right. A typical stealth question that is perfectly allowed is the "would you hire this person again?" question. It says a lot with one yes/no answer.

Exactly. And can sometimes open up follow-ups with, "Can you tell me why not?"

That's not true. Many companies have this as a policy to avoid defamation lawsuits from former employees receiving what they consider a bad reference, but that's not because there's a law forbidding it.

Can you provide a source for this? I've never heard of this before and am curious what legal restriction you are referring to.

It's in a secret section of the constitution on employment law, that overrides the first amendment.

The first amendment (and all the rest of it) has nothing to do with non-governmental, private interactions.

Of course it does, when you're talking about the government regulating non-governmental, private speech, such as this mythical law against employers saying truthfully that you were fired for cause.

Fair point. I suppose I'm really not sure.

That's why companies are free to have this as a company policy.

The First Amendment prevents this policy from being a law.

What would be the purpose of reference checks then?

to verify that you actually worked there. they can also verify that what you put on your resume was your role. Eg I can't really get away with "CEO of Microsoft" from my time as a janitor there.

I should have stated that it depends on the state. Some states may not have these stipulations.

Care to point one out that does?

California, typically one of the hardest on employers, appears to have explicit protection for bad references made based on evidence and without malice. http://www.nolo.com/legal-encyclopedia/california-reference-...

New York's another high-regulation state, and while there's no explicit protection against defamation lawsuits, it's certainly not illegal to invite one via a shitty reference. http://www.nolo.com/legal-encyclopedia/reference-laws-new-yo...

I can't imagine a "no references" law would survive First Amendment muster in the US, regardless of attempted state legislation.

I’m puzzled by one thing, if risk management is the concern: why not replace that clause by a candid, confidential conversation on what is wrong with the company? Any significant issue most likely affects more than one employee, including remaining ones.

It sounds typical of a culture driven by lawyers, rather than leaders.

Ah the notorious "exit interview"?

Steer well well clear of them too! http://www.asktheheadhunter.com/haexit.htm

I had one of these recently but didn't realize I could just decline it. I stuck firm with my "Nothing personal, just moving on to something new" rationale for leaving and basically answered all the questions in a "10/10 would work here again" kind of way. I figured any actual constructive criticism would be ignored anyway.

I've used "peer-led exit interviews" to great effect. Essentially get one of their co-workers to take them out for lunch to talk about want went wrong. Folks are much more comfortable talking to their colleagues. The person conducting the interview is generally happy to pass along the criticism (usually because they agree with it) without having to since they don't have to put their name to it.

I've gotten some real painful, but incredibly meaningful, feedback from these interviews.

just say NO.

In an ideal company culture, that conversation could have taken place at any time of the employee's tenure. Many companies do have exit-interviews designed to elicit this type of feedback. But with regard to severance ... companies know they have something of value, and many will seek to leverage that to their maximum advantage.

Never been fired but I think of that as consulting. I have been asked for that kind of info on my way out, and said the same. I definitely would not be giving that out to to the company that just let me go.

You refuse exit interviews even when you are the one who's decided to leave?

Companies could save themselves a lot of pretense with exit interviews and just assume the following:

If a good person leaves your company, it is because of one or more of the following:

1. You can't (or won't) pay them as much as someone else.

2. They aren't happy in the culture of your company.

3. They aren't happy with the type of work they are doing.

4. They don't see a bright future with your company - either for themselves, or for the company, or both.

5. They don't trust the company (or, possibly, the people they work with).

6. It isn't one item, or one incident, but over their time with the company, many little things that eroded their desire to work there. A person leaving today might have become fed up with the company two years ago when some botched project burned them or a manager handled something completely inappropriately. People don't usually just quit on the spot.

7. They want to work for themselves. Which means, they don't want to work for you. It really isn't you, it's them. (Wish them good luck and be sincere)

8. They can get a better deal (non-monetary) somewhere else and it outweighs the job. For young people, often the job is part of their identity. Once people get married and have kids (or just get a little older), they realize that working for someone else is not much of a reward. They may want a more flexible schedule, may want to just physically be closer to their home, any number of things that you may not be able to control.

9. You see them as a replaceable part and they know it. (Surprise!)

So rather than ask the person like a grownup they should wildly speculate in order to make everyone less uncomfortable?

I mean you have a list of 9 reasons off the top of your head and it's just the tip of the iceberg.

  So rather than ask the person like a grownup they should 
  wildly speculate in order to make everyone less 
When a parent asks friends "look at this photo, isn't my baby beautiful?" the answer is information-free as everyone will say "yes, that is a cute baby".

Exit interviews are the same. But unlike the stuff with a parent, it doesn't have the social-bond-building value of gossip.

With an exit interview, in the best case you learn nothing and know it; and in the worst case you learn nothing but mistakenly think you learned something. Not bothering with an exit interview helps you avoid that mistake, and saves you time as well.

When I left a former job, I was very candid in my exit interview. My former boss and I discussed things that I didn't like about the job, and he was interested to hear some honest feedback from someone with nothing to lose. It didn't cost me anything and it helped him to get a feel for things that other people didn't like either but weren't comfortable coming out and saying.

Maybe if things were sour it would have been different, but in this case I thought it was productive and was glad to help.

>When a parent asks friends "look at this photo, isn't my baby beautiful?" the answer is information-free as everyone will say "yes, that is a cute baby".

One of my life goals is to always answer this question honestly.

Please don't. Nothing good can come of it.

Perhaps they'll initiate less meaningless smalltalk with me once they realize that I prefer to engage in honest, substantial conversations.

Don't want to know what I think? Don't ask me.

They'll probably initiate less talk of any kind with you after pulling that.

That's fine with me. They sound like the type of people I'd rather not spend much time talking to anyway.

People who would get offended if you called their kid ugly are not the kind of people you'd want to spend time with? That's basically every person on earth.

Thinking that something is not beautiful is not the same thing as thinking that something is ugly. And there is a pretty obvious (though not to you, apparently) difference between being asked that question and me responding honestly, and me simply remarking, unprovoked, "boy, that kid sure looks pretty damn ugly, don't he?"

The kind of people I want to spend my time around are those who prefer honest questions and honest answers, as opposed to those simply soliciting me for a bit of verbal fellatio.

Is that clear enough for you?

Not being able to see the beauty in another human being is just sad.

You could spare us and stop initiating useless and argumentative smalltalk yourself.

Name another reason that doesn't fall under those nine. I'm honestly not trying to argue, just asking. There aren't really that many reasons why people leave. People leave because they aren't happy or aren't getting paid enough or they have a personal situation that dictates it. There are really just 3 reasons but I elaborated because I expected people to start chiming in with all of the reasons I missed.

Those reasons are so vague, though. Alright, so "people aren't happy", how should I go about fixing that as an employer? Step 1: find out what they are unhappy about. Hence the exit interview.

IMHO, this information should be gathered well before exit, e.g. through regular 1-on-1's, but that's another discussion.

An exit interview allows you to be more candid than in a regular 1-on-1. When you're still an employee you're more worried about saying something that could affect your perception.

Good point. This also very much depends on the manager-employee relationship between the two people in the 1-on-1.

Just won the lottery

Close relative has received a terminal diagnosis

Believed their horrorscope

Got pregnant

Saved enough money to retire to Thailand

Spouse has had an affair with a co-worker (Trust aside this is still a good reason)

Most of these fall under:

> They can get a better deal (non-monetary) elsewhere

Just won the lottery, close relative received terminal diagnosis, got pregnant, believed their horoscope, saved enough to retire - these are all cases where someone believes they can get more value for themselves by leaving their job.

Spouse has had an affair with a co-worker probably goes under "not happy with the culture"...

I probably wouldn't talk about any of those reasons in most situations.

People who leave usually negociate or talk up before they leave. If you need the exit interview, then your management is seriously unable to hear. In which case the exit interview won't be acted upon anyway.

The company should be having that grownup conversation well before I leave. If my manager does not know why I'm leaving, they haven't been doing their job as a manager...which may be one of the reasons I'm leaving. :-)

Of the companies I've worked for that hold exit interviews, and I've had conversations with ex-coworkers about what they said at the exit interview, it would appear that it doesn't make any difference anyway. So why open yourself up to any liability, or help relieve your ex-employer of any liability? Don't waste your time, or even their time for that matter.

That seems to be a lot of possible reasons. So once they see a good person leaving, what should they do to stem the flow? Having a list of nine possible reasons is nice, but if they don't know which one is the right one, it can make it very difficult to know what to change in response.

You should attempt to change all of the ones you can control. It's not simple. Which is why most companies only pretend to care.

Companies, CEOs and other executives should print this a thousand times and put it up on their walls.

If the company couldn't be bothered to learn what I thought in the months or years I've been working with them, I don't feel any motivation to tell them now. An exit interview is essentially saying, to me, "We didn't care until you left."

There's also the fact that I find most interviews incredibly dehumanising experiences. Someone sits down and reads some set questions at you... bleh. Does anyone enjoy that? You want to know what I think, try having a conversation. If the emotional and intellectual investment on your side is you deigned to read me a list? Just... stuff that for a game of soldiers. I'm not going to put up some of my feelings and concerns in response to a list-reading machine.

Ultimately, if I've got a good relationship with my manager, she or he will know why I'm leaving without needing to sit down and treat me like some stranger who they can interrogate. If we don't have a good relationship, then under those conditions all they've really done is pay my wage in return for code, and when they stopped doing so they lost the right to my time and effort in any form.

Outright refusing it seems awkward and overly hostile to me, but I have done it while giving very perfunctory answers. When they dug for more I told them I was available for consulting. Quite simply there is no incentive to do any more than that.

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