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.
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.
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.
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.
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.
(just for a reference, what nationality is the CEO?
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.
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.
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.
"Would you hire Jack(ie) again?"
Tells you all you need to know.
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.)
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.
Then you've broken your word.
Leaving gracefully (and briskly without making a scene) can indeed be helpful, though perhaps not in the Times author's circumstances.
 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 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 :)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
I don't think "unprofessional" means what you think it means. It is not, for instance, a synonym for "illegal."
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.
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.
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.
So it isn't worth just moving on with your career for, say, $3k (assuming a moderate $80k/yr salary)?
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.
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.
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."
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.
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.
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.
Duress would apply if someone is forcing you to sign.
"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.
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.
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.
(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...
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.
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?
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 :)
If you're asked to sign one when you leave, depending on your contract, any severance package might be considered consideration.
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.
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.
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.
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 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 .
 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...
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.
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.
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.
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.
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.
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.
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.
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.
In what country are you working?
The only right answer is no.
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.
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.
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"]
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 "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 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.
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.
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.
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.
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.
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).
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.
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?
So exactly what "consideration" are you talking about?
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.
Listen to this: http://www.econtalk.org/archives/2013/06/kling_on_the_th.htm...
Now, had it been a salaried position, I would have been far more concerned.
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.
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.
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.
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.
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.
"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.
For reference, CA Code 2870: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&gr...
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?
When Marissa Meyer was hired by Yahoo, I found it interesting that her employment contract included some pretty familiar language:
Yeah, some good books, but pity about the person.
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.
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)
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)
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.
I can't imagine a company offering severance nowadays without including this. 2 weeks may be negotiable, but this won't be.
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.
The First Amendment prevents this policy from being a law.
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.
It sounds typical of a culture driven by lawyers, rather than leaders.
Steer well well clear of them too! http://www.asktheheadhunter.com/haexit.htm
I've gotten some real painful, but incredibly meaningful, feedback from these interviews.
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!)
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
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.
Maybe if things were sour it would have been different, but in this case I thought it was productive and was glad to help.
One of my life goals is to always answer this question honestly.
Don't want to know what I think? Don't ask me.
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?
IMHO, this information should be gathered well before exit, e.g. through regular 1-on-1's, but that's another discussion.
Close relative has received a terminal diagnosis
Believed their horrorscope
Saved enough money to retire to Thailand
Spouse has had an affair with a co-worker (Trust aside this is still a good reason)
> 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"...
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.
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.
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.