Abuses Hide in the Silence of Nondisparagement Agreements

https://www.nytimes.com/2017/07/21/technology/silicon-valley-sexual-harassment-non-disparagement-agreements.html

by JoshTriplett • 9 years ago

121 55 9 years ago

tptacek4• 9 years ago

In the medium term, it seems like there needs to be a federal mandatory public policy exemption to nondisparagement, rendering the agreements unenforceable in cases like these and sanctioning illegitimate attempts to enforce.

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

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

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

tbrownaw3• 9 years ago

needs to be a federal mandatory public policy exemption to nondisparagement

I could see agreements not to spout off opinions making sense, but having actual facts (or things you reasonably believe to be facts) ought to make it ok.

Rather like what the Internet tells me the difference between US and UK defamation laws is; if you have actual facts on your side you're ok, but if you're just expressing opinions then it depends (on where you are; or I'd like to think on what agreements you have).

gjjrfcbugxbhf2• 9 years ago

Big difference between UK and US defamation law is that the burden of proof is reversed. In UK you have to prove that your defamatory statements were true but in US the defamed party has to prove they were false.

I'm not a lawyer, I'm not your lawyer. If you need legal advice or need to make a defamatory statement get real legal advice.

m-j-fox• 9 years ago

Seems like a good opportunity for someone to register disparage.org and start recording complaints against the uncomplainables.

ryandrake• 9 years ago

if a significant fraction of engineers at any company organized themselves

Unfortunately, as soon as you use the o-word, you've lost probably 90% of your audience of self-sufficient bootstrappy meritocratic engineers, to whom the idea of collectively bargaining for anything with other employees is unacceptable. Unionization is such a bizarrely taboo topic among techies.

curun1r• 9 years ago

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

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

walshemj2• 9 years ago

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

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

Hnrobert42• 9 years ago

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

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

ivanbakel• 9 years ago

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

brndnmtthws• 9 years ago

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

tbrownaw3• 9 years ago

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

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

danek4• 9 years ago

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

x0x02• 9 years ago

My lawyer told me very enforceable. I can't say why, but I had reason to ask.

addcn3• 9 years ago

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

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

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

sillysaurus33• 9 years ago

This story is probably true, but it feels like we're only hearing half of it.

Why wasn't the employee terminated immediately when the behavior became apparent? That would certainly qualify as termination with cause.

I know you sweep their behavior under the rug of "mental illness," which by definition means they weren't thinking clearly, but why would anyone possibly commit career suicide like that? Were they trying to extort you for money? Why would they do that for a paltry 30% of their salary when they could've just stayed with the company for 4 months instead?

I think what I dislike about this comment is that it comes across as almost bragging about bankrupting someone with a mental condition: "Right before it bankrupted them...guess what stoped happening. We dropped it without taking a cent. Hasn't been a problem."

tptacek4• 9 years ago

I can't imagine anything less productive than debating the details of a story introduced anonymously like this.

PhasmaFelis• 9 years ago

That's clearly an exceptional case, but in general I feel like you shouldn't need a special contract to protect against fraud and slander.

JumpCrisscross2• 9 years ago

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

MacsHeadroom• 9 years ago

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

The only winners in this game are the lawyers.

tsukaisute• 9 years ago

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

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

x0x02• 9 years ago

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

tbrownaw3• 9 years ago

Or they have blanket rules, specifically so that people can't make reliable inferences from their behavior in specific cases.

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

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

yuhong• 9 years ago

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

phkahler2• 9 years ago

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

pmiller2• 9 years ago

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

js83• 9 years ago

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

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

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

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

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

Overtonwindow• 9 years ago

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

danek4• 9 years ago

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

rstephenson2• 9 years ago

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

ahlatimer• 9 years ago

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

Here's an example of a former reddit employee disparaging the company and the CEO stepping in and giving his side: https://np.reddit.com/r/IAmA/comments/2iea97/i_am_a_former_r...

danek4• 9 years ago

It sounds super shady but it's what this company does. It's basically a payoff: "Don't ruin our recruiting pipeline or tarnish the opinion of any existing employees and we'll make your firing a bit less painful with X months salary, just sign here. Also we will let you know what 'X' is next week, after you've signed".

X ended up being 1 week of salary. Though for other people it was 1 or 2 months. Very shitty.

valuearb2• 9 years ago

Yea, I would have told them the non-disparagement agreement looked great and I'm looking forward to signing it as soon as I receive the corresponding severance agreeement to sign.

zebraflask• 9 years ago

That is horrifying. How did you possibly think that was reasonable advice?

danek4• 9 years ago

Yes I agree. To clarify, I was away on vacation at the time and we only spoke briefly. We discussed that the lack of details about the severance was weird but we had 10+ reports of others who had received 1-2 months of severance, and they had worked there only a year or two, whereas he had been there 4 years. So we though it was reasonable he would get at least a month of severance, based on precedence of "lesser" employees.

He was told that hr had a standard formula for calculating the severance but was not told that the main factor was his manager's discretion.

Also for him at this time, any money was better than no money, and he was interested in moving on with his life rather than writing a shitty Glassdoor review (he's actually doing much, much better for himself than he was at the prior company, I'm just pissed about the way he was treated). So yes, this was bad advice and I learned an important lesson. But I'm also thankful it worked out in his favor in the end.

known• 9 years ago

NDA != Slavery

praulv• 9 years ago

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

gjjrfcbugxbhf2• 9 years ago

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

BrandoElFollito• 9 years ago

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

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

x1798DE• 9 years ago

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

Abuses Hide in the Silence of Nondisparagement Agreements

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