Fired? Speak No Evil

http://www.nytimes.com/2014/01/03/opinion/fired-speak-no-evil.html

by uptown • 13 years ago

726 351 13 years ago

bertil• 13 years ago

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.

uptown• 13 years ago

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.

badman_ting2• 13 years ago

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.

davedx• 13 years ago

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

willvarfar• 13 years ago

Ah the notorious "exit interview"?

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

perlpimp• 13 years ago

just say NO.

waylandsmithers• 13 years ago

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.

enjo• 13 years ago

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.

crusso7• 13 years ago

The company is offering extra weeks of pay in return for not attacking them.

Why is this different than getting paid to do your job or meet a contract in other respects?

CaveTech• 13 years ago

It must be different in California, because here in Ontario companies are legally required to give at least 2 weeks severance in most instances.

If an employer isn't required to do the same in California then there's not much to complain about.

Is this the case?

spiralpolitik• 13 years ago

California is what is referred to as an "at will" state which means the company can let you go tomorrow without recourse or explanation beyond "we're letting you go" [1].

([1] There is legislation that comes into play if you let enough people go at the same time that its considered a "layoff". But it doesn't come into play for an individual termination)

LanceH• 13 years ago

Two weeks severance isn't traditionally "extra pay". It's generally a professional courtesy that they are now withholding until the no-longer-employee agrees to an everlasting requirement.

The flip side: Offer two weeks notice, but only if they agree to speak of you on your terms afterward. No company signs that. They would be liable for anything anyone in the company ever said about you, forever.

It's also exceptionally vague and even if it only applies to lies spoken by the employee, it can still have a chilling effect on the truth.

crusso7• 13 years ago

It's also "professional courtesy" to not trash people... but there you have it, so what would you be giving up if everyone is being "professional".

You can forego the two weeks severance if it isn't worth it and you really want to trash them.

Having been both on the employee and the employer side of things, as an employer it really sucks to do something nice that you don't have to like give someone a severance package and then have them be a jerk by trying to hurt you in some way.

a3n• 13 years ago

You're being offered two weeks of pay for behavior that will last effectively forever.

er35826• 13 years ago

No limitation on the clause is a big concern.

If you write a public review 3 years later about how a product from that company sucks, that could be held as a breach of this contract you signed, and would at the very least be a non-free legal headache for you. A headache that would likely cost you much more than the company to deal with, to boot.

300bps3• 13 years ago

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.

awakeasleep• 13 years ago

What country, industry?

Broken_Hippo3• 13 years ago

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

adricnet2• 13 years ago

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.

300bps3• 13 years ago

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.

clarky07• 13 years ago

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.

Broken_Hippo3• 13 years ago

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.

psaintla4• 13 years ago

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

gnu8• 13 years ago

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.

hudibras• 13 years ago

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?

nsxwolf4• 13 years ago

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?

logicallee2• 13 years ago

The thing is, people who are let go are going to be in a sour mood. They are often going to think of negative things, even (especially?) if they had a very positive experience, and ordinarily this would not be a signal that is important. But for a company that is reducing its burn rate, obviously public signals like what someone decides to say are hugely important. So it is really a reminder: "don't bad-mouth us please."

Why not just be fair, "In understanding the important relationship I had with my employer as a valued and insider employee, I will agree to be fair in any public representations made about the company, in deference to its important and precarious image at this critical stage. Nothing here should be construed as affecting my statutory rights."

I'd sign that in a heart-beat, and it might even be a good reminder.

psaintla4• 13 years ago

Because it is easier to bully someone to do what you want.

logicallee2• 13 years ago

sure, but it doesn't work. that's why companies give out equity and options, instead of trying to blackmail their recruitment targets. and startups around here described as being run by a bully implode or close soon thereafter.

mathattack4• 13 years ago

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.

silverbax885• 13 years ago

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.

netfire• 13 years ago

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

ceejayoz3• 13 years ago

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.

jasallen• 13 years ago

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.

yusyusyus• 13 years ago

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.

TeMPOraL• 13 years ago

What would be the purpose of reference checks then?

silverbax885• 13 years ago

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

300bps3• 13 years ago

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.

poopsintub3• 13 years ago

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.

mikestew2• 13 years ago

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.)

rsanders• 13 years ago

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.

alextingle6• 13 years ago

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.

tostitos1979• 13 years ago

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?

3pt141592• 13 years ago

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.

huhtenberg2• 13 years ago

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.

ww5203• 13 years ago

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...

throwawaypoiu• 13 years ago

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).

JackFr3• 13 years ago

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.

chimeracoder2• 13 years ago

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.

yajoe• 13 years ago

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

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

sdfjkl• 13 years ago

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?

alextingle6• 13 years ago

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?

rbanffy2• 13 years ago

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.

einhverfr• 13 years ago

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.

geebee2• 13 years ago

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.

triplesec• 13 years ago

Sue them for breaching your First Amendment rights through employment termination coercion.

beat• 13 years ago

What "First Amendment rights"? You give those up when you take a job. As Bob Black said in The Abolition of Work, "There is more freedom in any moderately de-Stalinized dictatorship than there is in the ordinary American workplace".

BlackDeath312• 13 years ago

First Amendment applies to governmental interactions only.

patatino• 13 years ago

I quit at two jobs until today.. The only thing I ever signed was my resignation.

danielweber6• 13 years ago

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.)

neohaven• 13 years ago

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.

poopsintub3• 13 years ago

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.

chimeracoder2• 13 years ago

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

jgalt2122• 13 years ago

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

http://humanresources.about.com/od/glossaryw/qt/WARN_Act.htm

crusso7• 13 years ago

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.

dubcanada• 13 years ago

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

dahart• 13 years ago

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.

danielweber6• 13 years ago

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.

DanBC• 13 years ago

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.

jaynos• 13 years ago

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.

danielweber6• 13 years ago

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.

njharman• 13 years ago

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.

pasbesoin• 13 years ago

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...

walshemj2• 13 years ago

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.

vidarh3• 13 years ago

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.

halostatue• 13 years ago

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

nemesisj• 13 years ago

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.

ibrad• 13 years ago

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.

officemonkey3• 13 years ago

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.

BrownBuffalo• 13 years ago

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.

chavesn• 13 years ago

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.

redshirtrob• 13 years ago

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.

mathattack4• 13 years ago

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.

jusben13693• 13 years ago

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.

JackFr3• 13 years ago

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.

mistakoala• 13 years ago

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?

genwin4• 13 years ago

No, not in my experience anyway.

imgabe• 13 years ago

There's already established case law concerning libel and slander, do these not apply to corporations? This clause just seems like a way to give a company the option to sue you for anything at all, regardless of whether it caused them any damages.

rbanffy2• 13 years ago

This clause just seems like a way to give a company the option to sue you for anything at all, regardless of whether it caused them any damages

Or if it's true.

chris_wot• 13 years ago

Two things wrong here:

1. Isn't this against the U.S. Constitutional right to free speech?

2. I'd say that if you had this signed then it would be under duress.

Not sure how this can be enforceable!

LargeWu• 13 years ago

The Constitution establishes the limits of the government's powers only. It does not apply to contractual agreements between private parties.

ProAm• 13 years ago

1) No, this is not against the 1st amendment. You do not have free speech at work, and before he signs this he is still employed.

2) He would not have signed it under duress because he does not have to sign it. It could be argued, but he'd probably lose. I wouldn't think either party would want to go to court over 2 weeks pay either way.

TheBiv• 13 years ago

The Constitution only stipulates your right to free speech against the government.

jrs235• 13 years ago

1. No. The first amendment pertains to government restrictions on free speech.

2. I highly doubt a judge or jury would believe that the individual's life was in danger if they didn't sign this.

Update: #1 is why having a few large conglomerate companies "in bed" with government is dangerous. The government can't hush you up but if you and most everyone else works for the few government appeasing companies then those companies could threaten to fire you... effectively diminishing [political and/or government] dissent and protest.

alecbenzer• 13 years ago

1. Free speech means you have a right to say what you want, but it doesn't mean you cannot voluntarily give up this right in part.

2. What part of this is duress? Nothing unlawful is going on; the author wasn't legally entitled to severance pay, even if withholding it is unprofessional.

qwerta• 13 years ago

What is "termination agreement"? You were fired with written or verbal notice. Severance and other stuff should be arranged in original contract you signed when hired.

harryh2• 13 years ago

It's an agreement that your company asks you to sign at the time of termination. You don't have to sign it (as the guy who wrote this article didn't). You're incentive to sign it is the severance pay they offer.

I don't really get why everyone here is so offended at the concept. It's the company offering a contract. You can sign it, or not. All the folks here that are being so high and mighty about it just come off as weird tbh.

dec0dedab0de• 13 years ago

Lets say you were to sign something like this, but then 10 years later the company completely changed direction and their new business plan was stealing candy from babies. Then you wrote something about how horrible the company is now. What kind of recourse would this contract let them take on you? Would you just have to pay the 2 weeks salary back to them?

chiph• 13 years ago

Your lawyer would tell you not to sign that agreement, because there wasn't a sunset clause on that portion. The ones I've seen are usually 2 years.

MartinCron2• 13 years ago

I wondered about this after I signed a severance contract that required me not to "disclose, defame, compete, or recruit" for a set period of time. Don't judge me, it was an emotional time and the severance was non-trivial.

I'm happy to say that time is over and I've gone on a disclosure, defamation, competition, and recruiting spree.

toomuchtodo3• 13 years ago

I laughed out loud at this :)

chrisbennet2• 13 years ago

I wonder if you could head this off contractually when you start a new job? Something like adding "Severance pay will not be made conditional on limitations of free speech." to the contract that you and your employer sign when you start a new job.

TheCoelacanth• 13 years ago

First you would have to get contractually guaranteed severance pay, which is a lot more than most people get.

chrisbennet2• 13 years ago

Not necessarily. They probably wouldn't even notice the clause in the contract until you pointed it out when you refused to sign the disparagement clause.

As an aside, the last time I got "severance" was in 2003 - my severance was a free lunch. It was a good company that went out of business.

hisabness• 13 years ago

do most companies purchase ipads for employees when they're cash flow negative?

frozenport• 13 years ago

Or you can sign it and nevertheless keep making disparaging remark.

stkni• 13 years ago

I've grudgingly signed one of these a few years ago because the owner of the company had a habit of vindictively pursuing employees she didn't like until they were poor. That trumped the crappy termination clause so I signed it!

But ultimately I don't think it really matters too much so why not just take the money and have it both ways? I reasoned that it would be pretty hard to enforce if I ever did really feel like venting some serious spleen.

Having said all that, most sour-grapes aren't worth publicizing IMHO. Unless they're funny of course and this one wasn't funny enough.

rayiner• 13 years ago

I would approach these contracts as creating an anti-competitive restraint on trade. Specifically, they seek to undermine the efficiency of the labor market by obscuring information about the working conditions at various employers. I think states would be quite justified in outlawing the practice on those grounds.

melindajb• 13 years ago

I love this. Yes, you want someone's silence, you're going to have to do better than two weeks of substandard pay that passes for a salary in SV startups. most employees forget that leaving is as much a negotiation as starting and EVERYTHING (in most cases, barring mass layoffs) is negotiable.

X4• 13 years ago

Fired People need Help, Power and a Lobby.

> Real story: I hated when I found out that I got presumably 2x more than other people and weren't allowed to tell them contractually. What I found out was that it was a lie and that some pet or favorite employees later or earlier got the same amount as I did. I don't like unfair payments even when I win! There are alternatives way of payment, like self-chosen salaries and collective efficiency based correction, but I don't know how such things are solved on a social level without causing anger and hatred. For example, I have a "friend", who is such a lazy ass, he would consider him smart for doing only what's necessary to get things done without doing actual work. That means finding ways to apply pre-made solution etc. and he hustles at every single job that you may have heard about. Yes he makes themes, IT-Stuff, changes your tires, washes your car, sells stuff on local classifieds ads, sets up stuff at events, works on your mc donalds and more. What would you do about such people? That guy would choose the highest possible salary for himself, his salary would get corrected by the employees based on performance, well if he doesn't try to social engineer his way up. You see, it's hard. I don't know a solution to fair payments to be honest. Do you?

geebee2• 13 years ago

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...

dreamdu5t• 13 years ago

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.

mcherm2• 13 years ago

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.

bradleyjg2• 13 years ago

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.

dmoney• 13 years ago

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.

FrankenPC• 13 years ago

Making termination/downsizing severance payouts contingent on signing a STFU clause should be criminalized. It smacks of duress to me.

busterarm• 13 years ago

I was laid off in a big layoff round on Monday. Apparently the only reasons I got caught in it were because it's a public company and because I've been employed too long and my benefits cost too much.

Whatever, I got several weeks of severance and signed. I feel shitty about it but I need the money.

I can't believe how many people have been fired this week. My twitter feed is filled with them.

maxmem• 13 years ago

That's when I'd rewrite it and then sign the rewritten version.

_delirium3• 13 years ago

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.

cududa2• 13 years ago

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.

_delirium3• 13 years ago

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.

mccolin• 13 years ago

I think I get to keep last year’s Christmas gift of an iPad, and the previous year’s bottle of wine has long been drunk

A way to reduce burn rate could have included slightly less lavish gifts.

gwern• 13 years ago

The wine was probably like $20, and the iPad (what, $400?) may easily have paid for itself in giving employees first-hand experience with a very popular/hot tech & ecosystem.

dwc2• 13 years ago

Though such clauses don’t technically violate the First Amendment

Not technically, not in spirit, not in any way related to the 1st amendment. Have so few people actually bothered to learn even a little about the 1st amendment? You can read the entire first amendment several times and then ponder it a little in just a few minutes, because it's very short. In fact, I'll paste the entire text:

  Congress shall make no law respecting an establishment of
  religion, or prohibiting the free exercise thereof; or
  abridging the freedom of speech, or of the press; or the
  right of the people peaceably to assemble, and to petition
  the Government for a redress of grievances.

To boil it down even further for relevance:

  Congress shall make no law…abridging the freedom of speech, or of the press

That's it. The contract and agreement to it have nothing to do with the first amendment.

jrockway3• 13 years ago

If this were 100 years ago, you could make the argument that by enforcing this contract, Congress made a law abridging the freedom of the press. I think that ship has sailed and failed, however, so it's too late now.

But it is interesting to think of how the Constitution can become meaningless if the government is willing to create laws to allow others to take away your Constitutional rights.

darkarmani2• 13 years ago

If this were 100 years ago, you could make the argument that by enforcing this contract, Congress made a law abridging the freedom of the press.

That's crazy. The point of the right is that you have choice where a law takes away that choice. You can choose to sell your actions to other people for a limited set of legal actions. Why shouldn't Congress enforce contracts when BOTH parties are willing to sign?

I hate the idea of this particular clause and find it very distasteful, but I don't think it should be illegal.

gottagetmac4• 13 years ago

Learning "a little about the 1st amendment" and pondering it "a little in a few minutes" is a dangerous thing. From just looking at this text, for example, you would think that it only applied to Congress, when actually it also applies to the executive branch, the judicial branch, and states and local government (since the Fourteenth Amendment and the incorporation cases).

I also think this narrow view has made you jump to a much stronger conclusion than is warranted. At least one scholar has considered whether the First Amendment could be interpreted to require that contracts of silence be unenforceable. http://www.lawschool.cornell.edu/research/cornell-law-review...

In this case you happen to be mostly right, but don't assume you can understand the contours of First Amendment law just by looking at the text. There is a vast apparatus that has been built around the First Amendment, little of which is deducible from the constitutional text alone.

dwc2• 13 years ago

Learning a little and pondering a little is far less dangerous than learning nothing. Learning how it's been interpreted over the years is better, of course. But a simple reading of the text would benefit many people and the public discourse. Once you have that, adding the interpretation that congress shouldn't make laws be extended to "the entire government shall not interfere with" isn't a big stretch. But whatever level of understanding one hopes to achieve, the place to start is with the text.

And it's not just this article. See almost any discussion forum where moderation has come up and you'll find invocations of the first amendment. See Sarah Palin saying her first amendment rights were violated because she was criticized in the media (and the assenting opinions by far too many). On and on. These people, who make a very specific claim, have not even bothered to check the basis of it. They wouldn't need to learn too much of the finer nuances to realize their claims were invalid.

spikels3• 13 years ago

It's pretty sad but you what you say is correct: We can no longer just read our laws in order to understand what they say. Instead we need to pay lawyers to tell us what they mean even when they appear to be very clear like the first amendment.

And of course like your scholar they are free to make up there own interpretation at any time. If they can get enough of their colleagues to go along then that interpretation becomes the meaning. Maybe start with something reasonable like shouting fire in a theatre.

But after two hundred years that meaning can drift pretty far. What was originally purely a constraint on the power of government can be transformed into a constraint on the rights of private citizens - the very people the bill of rights was meant to protect!

Is there any wonder why the forth amendment has done so little to stop mass surveillance? Or individual health insurance mandates are constitutional because they could have been implemented as a tax? Or the commerce clause covers absolutely anything? Or words like "is" and "no" can simply be redefined as needed.

Perhaps I am naive but I would like laws that most people can understand by reading them. Too bad the people interpreting and writing our laws have every incentive to continue to do exactly the opposite.

Sorry for the rant!

ianferrel2• 13 years ago

You can't sign a contract that sells you into slavery because of the 13th Amendment.

Why can you sign a contract that limits your freedom of speech in spite of the 1st Amendment?

Yes, I realize the law is complicated and there are many years of precedent distinguishing the two. But it's incorrect to argue that this isn't even in spirit related to the 1st Amendment.

gottagetmac4• 13 years ago

Well, because the 13th Amendment by its terms governs private conduct.

I agree, though, that there's a Shelly v. Kraemer type argument that could be made against the enforceability of contracts limiting freedom of speech in certain ways.

dragonwriter• 13 years ago

You can't sign a contract that sells you into slavery because of the 13th Amendment.

Because the 13th Amendment doesn't prevent Congress from making a law to make people slaves, it prohibits slavery from existing.

In law, words make a difference.

Why can you sign a contract that limits your freedom of speech in spite of the 1st Amendment?

Because restricting such a construct -- preventing you from trading speech or restraint of speech for some other good -- would violate the prohibition on government regulation of speech applied by the First Amendment.

greenyoda3• 13 years ago

"Not technically, not in spirit, not in any way related to the 1st amendment."

... unless your employer is the federal government, or a state or city government (since the First Amendment applies also to the states[1]).

[1] https://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Right...

babesh• 13 years ago

These agreements come with monetary penalties such as $10000 per disparaging remark. Also agreements come into place not necessarily with a signature but with the consideration, the severance money going to you.

Patrick_Devine• 13 years ago

It takes money to sue someone, and, given that the company is downsizing, it doesn't sound like they have money to do that.

I'd consider taking the two weeks severance and ignoring the clause. What are they going to win back, the 2 weeks of severance plus what? The amount of time and money plus potential negative publicity they're going to generate just isn't worth it. I realize this might seem unprincipled, but they're being pretty unprincipled by putting the clause in the exit agreement anyway.

Regardless, it's usually best not to talk smack about previous employers. Better to damn with faint praise.

hercynium3• 13 years ago

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)

toomuchtodo3• 13 years ago

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.

hercynium3• 13 years ago

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

efuquen• 13 years ago

+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.

robbiea• 13 years ago

I think the issue that Will Blythe might face now is that he has now alienated himself against future employers. Here is a guy who is willingly going to criticize a company he leaves (or maybe even currently employed at), just because he feels like it.

There once was a hugely popular tech gossip newsletter in Chicago that once publicly criticized an employer for screwing over his part-time editor in some sort of business deal. On one hand it's great that the employer was called out for some wrong-doings, but most importantly who is going to hire that editor now? Not me, that's for sure. You want me to hire someone who if I have a disagreement with is now going to tell her side and her side only on this email newsletter which she has priority access too and essentially put me on blast?

Will put his previous employer on blast without any quotes from them or getting their side on it. Does Will feel better about it? absolutely. Is this going to help his chances of getting a job with a new employer. Not a chance. Maybe this will help him sell his books?

| Mind you, I’m not looking to disparage Byliner.

This is the equivalent of saying, No offense but.. or I'm not a racist, but...

mcherm2• 13 years ago

He did not criticize his former employer at all, merely talked about the clause in the severance contract and his need as a journalist not to feel constrained.

jrockway3• 13 years ago

Very nicely done. Whenever someone wants you to sign something they say is "meaningless", refuse. If it's meaningless, why would they want you to sign it?

At the very least, hold out for more money and a time limit. Ask them to keep you on salary for 6 months, and you'll agree not to disparage them for a year, or something like that. A 50% discount! Think of the burn rate!

kabdib• 13 years ago

I've been in a couple exit interviews where the terms were crappy.

One I didn't have a choice with: The company was shutting down, and while I was going to get a severance check I was going to have to wait a period mandated by law (because I was a protected class, being over 40 at the time). Fortunately there was money left in the bank when I was able to collect the check (the founders had deep pockets and had committed to paying).

The second was when a start-up tried to stiff me on vacation pay, which in California is yours. I just said, "This is unacceptable" and sat there. 20 minutes later, after some apologizing and attempts to justify it with "well, that was your sick pay, too..." they cut a check.

aragot2• 13 years ago

What about when the forever-non-disparaging clause is in the employment contract itself?

And what value does it have that the contract has a stamp "Confidential" on all pages? Would talking about it here be forbidden?

run4_too2• 13 years ago

Here's a simple thing to say to an employer that offers such a clause:

Define "disparagement".

If anything ever goes to court, from case law it seems to be all based on whether or not an action is "disparaging". So, define what constitutes disparagement in advance, and if that is acceptable to you, go ahead and sign.

Personally, I'd sign nothing for 2 weeks pay, and then make sure everyone knows that was the offered severance. Seems disparaging enough to me. ;)

guelo• 13 years ago

As a programmer, the clause that always bothers me is the one about how they own everything that I do that's vaguely related to their business, even on my own time. I go ahead and sign it because I hear that the state of California protects me on that one. But I still make sure to hide my side projects from my employers and coworkers.

theatrus2• 13 years ago

If you are operating in California, push back. Non-enforceable doesn't mean they can threaten all they want.

Note that good companies clearly spell out the CA legal section which covers this. Bad ones try to hide it.

hafichuk• 13 years ago

Does Will Blythe have a paypal account I can send some love to?

staunch• 13 years ago

I agree with this person completely. It's the principle of the thing. There's absolutely no way I'd ever sign such an agreement...for two weeks severance. For 6 months severance? I think we'd both sign with enthusiasm.

jrs99• 13 years ago

Do they still keep pushing irrelevant articles from the 1980s?

fit2rule3• 13 years ago

The thing is, why disparage things? It never works in your favour, and the catharsis is never worth the ricochet factor.

entendre2• 13 years ago

Have you ever walked into a job that you thought would save your life and pull you out of a slew of bad breaks... your dream job? And then some miserable pissant with leverage over you and your position decides to make you a scapegoat? When you're going down in flames at least grab the pilot's parachute.

fit2rule3• 13 years ago

miserable pissant

Lost me there.

raganwald2• 13 years ago

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.

genwin4• 13 years ago

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."

vladd• 13 years ago

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?

ylou• 13 years ago

Everyone has a price.

nathanb2• 13 years ago

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 :)

genwin4• 13 years ago

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.

michaelochurch3• 13 years ago

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.

loteck• 13 years ago

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.

spikels3• 13 years ago

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.

raganwald2• 13 years ago

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.

swamp40• 13 years ago

It seems to me like he would have quickly signed the agreement if it were, say, for 3 months salary.

So his "I'll keep my self respect" morality argument seems a little weak.

Like the joke goes, "We've already established what you are, now we're just negotiating your rates...".

oh_sigh• 13 years ago

Personally, I would sign it, and then if I felt I had something negative to say and wanted to say it publicly, I would return the money.

Also, could you use ASL to communicate your feelings about the company, since that is neither oral or written?

JohnTHaller• 13 years ago

Let's say you sign such an exit clause and get paid your 2 weeks hush money. What's to stop the company blaming some performance or missed target on a project on you afterwards, possibly even publicly. And then you're not allowed to respond.

I have never signed a clause like this in a start/end employment contract nor will I ever.

If a company doesn't want to be spoken ill of, don't do ill. If the only way a company can keep its employees/former employees from speaking true ills of them is to contractually obligate them not to, that's not a company worth giving the time of day to.

snorkel• 13 years ago

Bah! The termination agreement is just a bunch boilerplate legalese cover your ass bullshit, really. So sign it and take the severance check, then go say whatever you want anyway. It's very unlikely that a company that can't afford its current staff will then spend time and money with lawyers just to smack you around for saying mean things about them.

ExpiredLink• 13 years ago

“You agree,” it reads, “that you will never make any negative or disparaging statements (orally or in writing) about the Company or its stockholders, directors, officers, employees, products, services or business practices, except as required by law.”

No consequences in case of violation? Sign it. It's meaningless, merely there to intimidate the judicial illiterate (i.e. most of the ordinary people).

michaelochurch3• 13 years ago

My general rule of thumb is that if the severance covers the expected time of the job search-- and allows you to represent yourself as employed during that time-- you should sign the non-disparagement clause and take the package. That's typically 2-3 months at lower levels, and 6+ months at higher levels. Offering nondisparagement is almost always worth it to move on with your career intact and your income undisrupted.

At 2 weeks, you should tell them to shove it. If they don't take care of you, you don't take care of them.

Honestly, I wish more people did tell the truth about ex-employers who treated them badly. The "never badmouth" rule makes severance payments low, reckless firings common, and bad corporate behavior a lot more prevalent than it should be.

mrfusion• 13 years ago

Is that common to present yourself as employed? I've never heard of it.

keypusher• 13 years ago

He wasn't fired, he was laid off. There are two types of employment termination, those where the employee is deemed at fault by the employer, and those where he is not. This guy was explicitly told that he was not a fault, and he was laid off due to burn rate at the company. Then he says he was fired? No. What difference does it make? When you are laid off there is often a severance package and you are eligible for unemployment benefits, some of which come out of your former employer's pocket. Therefore, you are still at least somewhat obligated to them financially. If you are fired, you are not eligible for either of these things.

http://en.wikipedia.org/wiki/Termination_of_employment

rickyc091• 13 years ago

My case is pretty similar, but I caved and signed. For me, I wasn't fired, I quit, but I had to sign the same clause, except it was to receive my final paycheck. Oh yeah, my vacation days/pay were also stripped from me, even though I had already requested days off months before I had told them I would be leaving.

dmourati• 13 years ago

This is a perfect time to apply Holmes' "bad man theory of law."[1] Sign the agreement AND disparage them all you want. Sure, you could wait the two weeks and cash the check first to be extra cautious. After that, what are they really going to do? People like to imagine being dragged into court to determine whether disparagement (whatever that means) actually took place. The author even says the disparagement has to be untrue. That doesn't sound like anything any company wants to litigate. Can they cry and scream and say you broke the agreement? Sure, but so what? Their remedies are few and far between and you are long gone. If you really want to cover your end, just get a job first, then disparage away. Happy disparaging!

[1] http://www.constitution.org/lrev/owh/path_law.htm

squozzer• 13 years ago

I would only say this -- sticking to facts, avoiding emotionally-charged or conclusive words (e.g. "dishonest", "evil"), and -- perhaps extreme cases -- not naming names makes the claim of disparagement much harder to stick.

For example, consider the following:

I bought a widget from an online retailer. It arrived broken. It took two emails and three calls to get an RMA. Once received, it took three weeks to receive a refund.

Versus

Online retailer X is evil.

yoavyoav• 13 years ago

amazingly written. that's a keeper right there.

damm• 13 years ago

It is unfortunate that companies must resort to Termination Agreements and wave money in front of your face to buy 'brand loyalty'. (I Call it that)

Additionally it is downright shameful that companies have forgotten to communicate better; some empathy and you'll find letting go of employee's does not have to be as negative. Worst part is companies expect the negativity when letting go employee's; they expect them to blow up.

I think the worst part is how I've seen companies set up the firings at times to add extra 'pain' to the employee's departure. Personally I spent almost 2 years at a company who was Acquired by Twitter to only be let go less than 45 days after the merger (right before Christmas). They let a peer go right after he got back from his Honeymoon! I have seen worse but this is just the tip of the iceberg!

Nothing better than Congratulations on getting married; pack your desk and GTFO.

Lastly: I did not sign a non-disclosure agreement personally about my last $client and I can speak freely about how much vitriol was spewed there on a daily basis.

Rexxar• 13 years ago

There should always be a time limit on this sort of clause (preferably short).

samstave• 13 years ago

This happened to me in ~2009 where I worked for the worst CEO I have ever worked for.

When I left the company, he offered me ~$5,000 to sign a non-disparagement agreement.

I refused and said I was free to say whatever I wanted about the company.

They literally held the check out to show me "Here is your carrot, take it".

grellas• 13 years ago

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.

Florin_Andrei3• 13 years ago

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.

throwaway78083• 13 years ago

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).

x00542• 13 years ago

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.

nostrademons• 13 years ago

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.

Jemaclus• 13 years ago

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.

throwaway3471• 13 years ago

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.

ScottBurson• 13 years ago

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.

throwaway78083• 13 years ago

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?

calibraxis• 13 years ago

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.

MyNameIsMK• 13 years ago

Employers are taking WAY MORE RISK than the worker.

The term is called Employment-At-Will http://en.wikipedia.org/wiki/At-will_employment

mcv3• 13 years ago

Having previous employers as guaranteed positive references can be pretty valuable. On the other hand, if it's standard, what's the value of a positive reference?

If you get extra pay and the non-disparagement goes both ways, for most people individually it's probably a good idea to sign it. But for society as a whole? I'm not so sure.

product50• 13 years ago

I wonder if the author's stance would have been the same had he been offered 6 months severance.

ErikRogneby• 13 years ago

It would be interesting to turn the tables and draw up a termination of contract when you quit, and demand 2 weeks severance in exchange for a non-disparagement clause which you agree to.

I have a feeling that would raise a lot of hackles.

jakobsen• 13 years ago

Anybody with some law knowledge can help me get this right?

He says the clause doesn't violate the First Amendment because he is freely agreeing to "forfeit his right to speak freely".

Are constitutional rights not inalienable in the USA then? In my country, in case of conflict laws of "greater range" take precedence over laws of "lower range", and contracts are at the bottom of this hierarchy. That means that a clause as the one being discussed here would be void, since you can't give up your right to speak freely even if you wanted¹ Isn't there a similar concept in the USA??

¹ That also means that if laws mandate 3 weeks of holidays, you can't take only 2 weeks in exchange for a bigger pay even if you wanted (happened to me once).

fatca• 13 years ago

There is a mismatch in duration. The obligation on the side of the employer is a one-off payment. The obligation on the side of employee is ad vitam aeternam (forever). If the employer wants to keep the employee to his obligation, he will have to make additional payments for additional periods of non-disparagement.

dangayle• 13 years ago

When I and my team stood up to the executive team of a startup I was working for and quit, they offered me this exact non-disparagement gag clause in exchange for any compensation whatsoever.

The reason we quit was because they were taking advantage of us, and we knew we were never going to get paid. We also knew that they would simply lie to whoever it was they were going to replace us with, so we refused to sign the gag.

It was seriously one of the worst companies to work for, and I was darn sure going to make sure that everyone knew it. I value my freedom of speech

DavidWanjiru• 13 years ago

I've always assumed that severance pay is not an artifact that is negotiated upon severance, but rather that it comes into effect once the necessary conditions vest, so to speak. Severance pay, and an employee's right to it, is implicitly contained in the employment agreement, and once the conditions for payment laid out in the employment and labour law regime under which you were hired are met, then your right to get paid automatically comes into effect. The idea that an employer can refuse to pay you on the basis that you have refused to sign a severance agreement seems out of whack with the spirit of the law to me, assuming that this is not explicitly stated either in law or in your employment terms (that your being paid for severance is subject to you signing a severance agreement).

jwatte2• 13 years ago

Employees are supposed to give two weeks of notice before leaving, and employers have traditionally (?) Given two weeks severance. If that severance is now conditional, what is the converse that employees change?

Btw: whenever there is a limitation (and non-disparagement is common in employment agreements, too,) I insist it be time limited. Who knows what kinds of trolls have bought the other party ten years from now?

ps4fanboy• 13 years ago

Are severance payments in USA not guaranteed by law? In my country the company has to pay your severance and cant hold it hostage while you negotiate a contract.

dimfisch• 13 years ago

One thing's for sure: Byliner got a lot of free advertising here...

smhanov• 13 years ago

In Canada, at tech startup seminars, the lawyers remind us that the government has a "Ministry of Labour", and it is NOT called the "Ministry of Employers" for a reason. Lawyers advice employers to make the employee happy, or risk costly battles due to a complaint to the Ministry. As far as I know, you are legally entitled to either termination pay or advance notice, and holding it ransom as coercion to sign some agreement would be very risky.

Apparently some companies still download employment agreements off the web that have the "at will" clause but this makes them invalid.

dbot• 13 years ago

A few years ago, my law school classmate turned down a lengthy severance to avoid signing one of these after a bitter termination. Instead, he took a job in the building's coffee shop. He'd see people he used to see all the time, and when they'd ask what happened, he'd tell them all about the horrible way he was treated by the firm, etc.

The firm ended up giving him a bunch more money to shut up and quit the barrista job.

Fired? Speak No Evil

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