Fired? Speak no evil.
January 3, 2014 6:53 PM   Subscribe

Fired? Speak no evil. "[A] termination agreement pinged into my inbox. Much of it set forth standard-issue language resolving such matters as date of termination, the vesting of options, the release of all claims against the company, and the return of company property. 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, but I must send back any company files in my possession. So far, so good. What brings me up short is clause No. 12: No Disparagement. '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.' 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."
posted by SpacemanStix (109 comments total) 27 users marked this as a favorite

 
Sounds like the beginning of a negotiation.
posted by Brian B. at 6:57 PM on January 3 [8 favorites]


If the company feels like they can buy your silence for a paltry two weeks's severance, they're making a careful calculation and decided that you just might be a sucker, or, alternately, won't read the agreement carefully.
posted by chimaera at 7:04 PM on January 3 [8 favorites]


My vote is b) that they are counting on people not reading the contract properly. When you're laid off, you generally just want to get out the door.
posted by arcticseal at 7:06 PM on January 3 [5 favorites]


This is the definition of duress. Fuck modern American management practices.
posted by Benny Andajetz at 7:08 PM on January 3 [50 favorites]


sounds to me like he figured out that a NYT op-ed might pay a little better
posted by pyramid termite at 7:11 PM on January 3 [29 favorites]


Non-disparagement agreements seem to be a pretty good deal for the company. If the employee signs them. Because if they don't the company may very well get a taste of the Streisand Effect (as is the case here).
posted by triggerfinger at 7:11 PM on January 3 [1 favorite]


This is disgusting.
posted by polymodus at 7:14 PM on January 3 [2 favorites]


Is this really becoming the norm in the private sector? Even if he's right that they are largely unenforceable, it still feels wrong somehow.
posted by Dip Flash at 7:15 PM on January 3 [2 favorites]


Yeah, I'm positive that I could do two-weeks'-pay-worth of trash talking them without even breaking a sweat.
posted by Benny Andajetz at 7:15 PM on January 3 [5 favorites]


I can't comment on this. But I can say I used to work for a DJ30 company that rhymes with wiser.
posted by Kid Charlemagne at 7:16 PM on January 3 [3 favorites]


I love that it's a whole freaking two weeks of severance too.
posted by octothorpe at 7:19 PM on January 3 [4 favorites]


I pledge allegiance to the flag of the United Corporation of America, and to the Republic for which it stands, one nation, under Capital, with liberty and justice for the powerful.
posted by scody at 7:23 PM on January 3 [38 favorites]


These are common in settlement agreements that resolve lawsuits, but to see one in a standard severance agreement is icky. When a lawsuit is settled, one of the things the employer bargains for is a lack of publicity, basically. And that makes sense in the context of a lawsuit. It isn't nearly as advantageous to settle if the employee later is going to rip you. But in those situations there's real reason to believe they might do just that: they're suing you, after all. And also in those cases the settlement agreement is truly negotiated, unlike this gross thing which is nearly a contract of adhesion: here, there is no negotiation, it's strictly take it or leave it.

I do think it is reasonable for the employer to get something back in exchange for a severance payment it isn't required to make, but the cheaper the severance payment, the less they should expect in return, and a no disparagement clause is a big ask for half a month's pay in the absence of any actual disparagement issue with the employee. So, yeah, this is sucky and I hope the negative press they might get from this would persuade other employers from linking small severance packages to similar clauses.
posted by MoonOrb at 7:26 PM on January 3 [7 favorites]


Pretty typical. And the only reason they offer the severance is that it's not a binding contract unless there's consideration on both sides. If they could ask you to sign that in exchange for letting you take the pictures off your desk, they would.
posted by phearlez at 7:28 PM on January 3 [5 favorites]


Is this really becoming the norm in the private sector? Even if he's right that they are largely unenforceable, it still feels wrong somehow.

I've gotten them the last two times I got laid off, though that was 2 years ago, so I'd imagine it's only become more common. Granted, I live in Libertopian Texas so they probably could've taken me out back and shot me without facing more than the price of cleaning up the mess.
posted by Ghostride The Whip at 7:28 PM on January 3 [8 favorites]


Sadly, this is indeed boilerplate stuff. And it was part of the severance package that I had to sign this past year (for two MONTHS' severance, in my case).

But I had a lawyer friend look the agreement over quick before signing it (for other reasons) and she agreed that that meant largely no Big Public Official Statements rather than general grumbling. I've dropped enough hints about my last job in here for y'all to get the gist of what my complaints were, but I haven't actually mentioned the actual name of the institution publicly - and therefore I'm okay.

It sucks, but there are ways around it.
posted by EmpressCallipygos at 7:29 PM on January 3 [4 favorites]


Corporations are legally considered people. Individuals, in a new twist, are not.
posted by Sing Or Swim at 7:29 PM on January 3 [51 favorites]


sounds to me like he figured out that a NYT op-ed might pay a little better

Certainly helps the Q rating, which looks like it could use a little help. He's a good writer at a time when making a living by writing good is getting harder and harder.
posted by IndigoJones at 7:30 PM on January 3 [1 favorite]


how my former employer, Byliner,

Unsubscribed.
posted by the man of twists and turns at 7:39 PM on January 3 [5 favorites]


Yeah, I got stuck on one of these too, as well as an overly-broad non-compete that basically means I couldn't even apply for a job with a company that might possibly compete with my former employer at some point in the future.

*headdesk*
posted by SansPoint at 7:42 PM on January 3


These are really common in severance agreements, yes. I have seen hundreds of them, especially from creative and tech firms.

They're a lot like non-competition clauses, however, in that they're almost never enforced/enforceable.

Also similar: unless the violation is so flagrant that it causes actual, measurable damages, it's unlikely to go anywhere.

(Complaining about the firm to your friends and colleagues? Nobody will protest. Publish a critique in the NYT that leverages info that only an insider could know? Lawsuit.)
posted by rokusan at 7:51 PM on January 3 [5 favorites]


I had one to sign one of these agreements. I was incredibly outraged. Then, I got a protip from a friend that advised me that settlements accompanied by a release of claims are viewed differently when you collect unemployment. My claim was initially denied, but I appealed and was ultimately able to collect both severance and unemployment simultaneously. Yes, I was very happy to be bought off, and boy was my employer pissed, which was very satisfying. (Obviously, states vary in how they handle this, but see for example what Massachusetts has to say.)
posted by summer sock at 8:05 PM on January 3 [20 favorites]


Oh yes. I had this pulled on me about 11 years back- I told the asshats to take their severance (about a months rent, pitiful after 14 years) and stuff it. They were quite worried that I did that...

I have not regretted my bad attitude.
posted by bert2368 at 8:23 PM on January 3 [9 favorites]


I know it depends on the jurisdiction, but I thought that the idea of severance had been fairly standard in the Western world since about 1936.

Doesn't the company owe him severance in any case? And then maybe a little extra for adding this new, "non-disparagement" clause that was not in the original employment contract, if indeed he had agreed to it. (Good on him for turning it down).

Perhaps a California or other US employment lawyer could comment on this aspect. Either he's not entitled to severance upon termination (in which case things are worse that I thought) or else this slimy company is threatening to hold back his legally mandated severance pay unless he agrees to add this new term to the contract.
posted by the thing about it at 8:31 PM on January 3


Doesn't the company owe him severance in any case?

Nope, not in the U.S., unless his employment contract specifies it. And most people don't have employment contracts.
posted by Wordwoman at 8:33 PM on January 3 [4 favorites]


That's fucked up. Severance is legally mandated here unless you are being terminated for cause.
posted by feckless fecal fear mongering at 8:53 PM on January 3 [4 favorites]


I would be fine with this as long as the Disparagement clause only lasted for the two weeks they would be paying him for.
posted by fings at 8:55 PM on January 3 [12 favorites]


Nope, not in the U.S.

trooly a beekin of sivilizashun
posted by Hoopo at 9:05 PM on January 3 [9 favorites]


When I resigned (voluntarily!) my software engineering position at Yelp they handed me one of these contracts and waved a whopping $500 in my face to try to get me to sign it. I guess that works better on their thousand-person army of six-month-turnover salespeople.
posted by spitefulcrow at 9:14 PM on January 3 [6 favorites]


Always ask for more severance. Also an agreement that they will not block your claims for unemployment benefit. Finally some money part of COBRA insurance if you end up needing. None of these things is going to cost them very much and probably exist in the range of things that they are prepared to offer if it means they can get you out the door faster.

Now delving into the agreement point out that the idea of a non-compete seems ridiculous because if they thought you were that valuable, they wouldn't want you to leave the company. Suggest they strike it. Failing this tactic suggest that they limit it to three named competitors and negotiate on the duration suggesting months not years. If they really want some ambiguous non-disparagement clause, then suggest that its a mutual non-disparagement clause.

I assure you that in most companies there is always a bit of flexibility and some deal sweeteners lying around when an employee gets cold feet about singing a severance agreement. All you have to do is ask.
posted by humanfont at 9:15 PM on January 3 [83 favorites]


Doesn't the company owe him severance in any case? And then maybe a little extra for adding this new, "non-disparagement" clause that was not in the original employment contract, if indeed he had agreed to it. (Good on him for turning it down).

Perhaps a California or other US employment lawyer could comment on this aspect. Either he's not entitled to severance upon termination (in which case things are worse that I thought)


Employment agreements are unusual in the United States. Most employees are employed at-will, meaning basically that neither the employee nor the employer are contractually bound to one another. Protections, such as they are, are not found in individual contracts, but in federal and state employment statutes. In some industries, and in the case of many executives, employees will receive actual employment contracts, but that would be the exception, not the norm.

Consequently, severance pay is not mandatory, either. It is not uncommon to receive severance from some jobs, but it is certainly not the norm, either. In the U.S., the notion of severance pay could be said to be socialized through state systems of unemployment compensation. That's a gross over simplification, and it's not the case that every single employee is eligible for or receives unemployment upon the termination of their employment.

But it's generally different than other western countries (well, I've only worked in one other country, and I was quite surprised when I was given an actual employment contract for a very junior role).
posted by MoonOrb at 9:24 PM on January 3 [1 favorite]


That clause has never bothered me. It just means my severance is hush money.
posted by Tell Me No Lies at 9:32 PM on January 3 [3 favorites]


sign the thing. take your money. say what you want.
posted by quonsar II: smock fishpants and the temple of foon at 9:40 PM on January 3 [6 favorites]


I refused to sign a non disparagement clause once, forgoing one month's salary. As a result, my employer thought I was going to something provocative. I was not, I just didn't want to sign a piece of paper limiting my expression.

In retrospect, I think the month's salary was the better deal.
posted by zippy at 9:59 PM on January 3 [3 favorites]


"trooly a beekin of sivilizashun"

Our traditional sarcastic benediction is, "City on a hill."
posted by klangklangston at 10:08 PM on January 3 [2 favorites]


[One comment deleted. Not such a great idea to use the site to publish accusations against a specific private individual from your past.]
posted by taz at 10:09 PM on January 3 [1 favorite]


I signed one of these once.

It contained the phrase 'former employees' in that long list of parties not to make any negative remarks about.

The way I parsed it is that I was contractually prohibited from ever saying anything negative about myself (being a former employee and all).

As far as publicly bad-mouthing former employers; this seems generally unwise and will not likely look favorable to a future employer.
posted by el io at 10:22 PM on January 3 [2 favorites]


That's fucked up.

Welcome to every single thing about being an employee in America.
posted by Steely-eyed Missile Man at 10:51 PM on January 3 [31 favorites]


Do people really use the term "fired" interchangeably with "laid off?" I always thought "fired" implied some fault, or cause. I also thought that while severance is not mandatory, that there were rules around it, so that you couldn't lay off two people and give them different severance amounts. But I could be wrong about that.

The only time I was ever fired, I got two weeks severance, and was so happy to get out the door, I don't even remember if I signed one of these.

When I got laid off at the start of the financial crisis, I got 3 months warning, and 10 weeks severance (and my laptop) after that, and I continue to maintain that company was one of the best places to work, ever.

Treating people well often works better than lawyers if the goal is to not have them disparage you.
posted by bashos_frog at 10:51 PM on January 3 [12 favorites]


Always ask for more severance. Also an agreement that they will not block your claims for unemployment benefit. Finally some money part of COBRA insurance if you end up needing. None of these things is going to cost them very much and probably exist in the range of things that they are prepared to offer if it means they can get you out the door faster.

Good to know. If I had happened to sign one if these in the past from a Fruitily-Named company, it would been part of a parcel that included 26 weeks of severance lump sum plus unemployment, 3 months COBRA, & 3 months with a specialized placement service that likely was a huge waste of my time, it not being specialized enough for my industry of the time. But since the agreement would have also had an NDA & no compete & a no fault detachment clause, I would not mention it until after the agreement/clawback time had passed. My only theoretical issue with the theoretical situation would have been to wonder if the third party partner non disparagement clause I had to sign when I started agreement I had to sign to start working there was still in effect ...
posted by tilde at 10:52 PM on January 3 [3 favorites]


Personally I'd say, "Stuff the two weeks of pay, you gutless control-freak wankers, it'll be worth it to not only slag you off everywhere I can but to make sure this particular bit of bullshit you pull gets reported as widely as possible. You FUCKERS."

Probably just me.
posted by Decani at 11:41 PM on January 3 [7 favorites]


she agreed that that meant largely no Big Public Official Statements rather than general grumbling

Bet you she wasn't willing to put that "agreement" in writing, though.
posted by hattifattener at 12:00 AM on January 4 [1 favorite]


Two things are particularly disgusting about non-disparagement clauses in the US. One, they're typically in perpetuity, in theory creating a lifetime obligation for the former employee while the employer has no particular obligation past a few months' severance. And two, they're largely unenforceable, both in practice and possibly under the US constitution. It's an abusive practice promulgated by company lawyers because they can.
posted by Nelson at 3:09 AM on January 4 [4 favorites]


It's an abusive practice promulgated by company lawyers because they can.
Welcome to every single thing about being an employee in America.
posted by Steely-eyed Missile Man at 1:51 AM on January 4

posted by mikelieman at 3:20 AM on January 4 [2 favorites]


Severance is becoming more and more a rarity in the 21st Century Feudal State. Also, just because you can't say anything doesn't mean that a few of your anonymous friends can't.

Sign it, take the money, and then say anything you want after you've found your next gig (if that makes sense, remembering that if you burn a bridge that it may come back to haunt you). It's mostly not enforceable.

Non-competes are not enforceable in California.
posted by Vibrissae at 3:42 AM on January 4


Do people really use the term "fired" interchangeably with "laid off?" I always thought "fired" implied some fault, or cause.

"Laid Off" used to be the term used for what happens to workers during the period of time a factory would shut-down for re-tooling, maintenance, seasonal lulls, etc. It meant that the employee did not lose their job, and would be called back when the factory restarted. So, technically, calling terminations "laid off" is historically incorrect.

Somehow, it started being being used as a replacement for "fired". My gut tells me that it's something management and HR people adopted because it sounds softer than "fired". I think it's also due to the fact that firings have become financial tools, rather than punishment. Workers are more apt to be fired as a financial move by the company, rather than due to any lack of effort on the workers' part.

The more milquetoast term "Let go" is also used a lot.
posted by Thorzdad at 4:34 AM on January 4 [4 favorites]


I was "let go" from my last job, thanks to an organizational reshuffle six months ago, and I had to laugh that the agreement I was required to sign to get my well-earned month of severance pay included language about disparagement. I don't disparage my previous employers, because it's corrosive to the soul to hang on to such bitterness, and because such post-employment negativity will invariably get around to your prospective new employers in the all-in internet gossip hole, but even if I did, the clause would be meaningless for one key reason—I was reared in a family of mean old Southern ladies.

If there's one thing you learn as a child from spending afternoons in the parlors of mean old Southern ladies, it's that you can say the cruelest, most cutting, viscera-grinding things using only sweetness and compliments. If a sentence begins with "bless her heart," prepare for ruination on an atomic scale and a flood of molasses deep enough to drown a horse.
posted by sonascope at 5:17 AM on January 4 [24 favorites]


Do people really use the term "fired" interchangeably with "laid off?"

Well, the Boston Globe always did, when I was reading it. The two terms have different legal meanings*; if you're fired for cause, you cannot collect unemployment. If you are let go because the company is downsizing (Thorzdad's "financial tool"), they cannot say you were fired, unless they show cause.




* This is the case in MA; I can't say what is the case other places.
posted by Kirth Gerson at 5:32 AM on January 4


A few years ago, I was laid off with about a quarter of the staff of an arts in education academic non-profit that was a small part of a very well to do non-profit arts presenter.
I was given on of these to sign. The agreement also forbid me from discussing the details of whatever severance, if any, they offered me.
posted by qnarf at 5:38 AM on January 4


If there's one thing you learn as a child from spending afternoons in the parlors of mean old Southern ladies, it's that you can say the cruelest, most cutting, viscera-grinding things using only sweetness and compliments.

I have always described a certain kind of Southern lady thus: the kind of lady who can cut your heart out, serve it to you on a silver platter, and you will thank her for doing so.
posted by feckless fecal fear mongering at 5:48 AM on January 4 [3 favorites]


I've been laid-off three times and the severance deals get worse each time. The first time in '05 I was laid off from a Large Blue Computer Company and they gave me three months plus six months health insurance, some training money, a session at a resume service and a few other assorted fabulous parting gifts. Plus they gave me a month's notice but told me not to show up anymore so it was effectively four months severance. In contrast, during my most recent RIF they gave me two hours to pack my books and gave me a whole one week's severance.
posted by octothorpe at 6:04 AM on January 4 [2 favorites]


When my old job was doing layoffs, their idea of severance was paying the difference between unemployment and your normal salary. No lump sum of money to go away, if you got a job the following week your "severance" would vanish.

As others have pointed out upthread, an American employer doesn't have to give you anything upon your termination other than a ten-second headstart before releasing the security dogs.
posted by dr_dank at 6:17 AM on January 4 [3 favorites]


As others have pointed out upthread, an American employer doesn't have to give you anything upon your termination other than a ten-second headstart before releasing the security dogs.

When I was let go from my last job, there was no warning. Just my manager coming over to my cube, saying "Can I see you for a minute?", and ushering me into a meeting room where the HR asshole was waiting, wearing a huge grin.
I apologize to any MeFites working in the HR world. This particular HR person was a part-time employee, with only a high-school education, who seemed oddly chummy with the CEO, and treated us all like serfs. She was the only HR person in the company. They had let-go the actual, trained professional HR person a few years earlier and promoted this person from a secretary position.

I was let go and told to immediately leave the building and that I had to make arrangements with security to come back on a weekend to collect my personal items.
posted by Thorzdad at 6:48 AM on January 4 [1 favorite]


I have worked for the same company since 1985. I am starting to feel like I'm missing out on something.

Probably about $30,000 a year.
posted by localroger at 6:52 AM on January 4 [4 favorites]


In contrast, during my most recent RIF they gave me two hours to pack my books and gave me a whole one week's severance.

At least you got something. The one time it happened to me (one hour after I'd gotten to work in the morning), it was pretty much exactly like Thorzdad's experience , except they let me collect my paltry belongings as they rushed me out the door.
posted by Steely-eyed Missile Man at 6:57 AM on January 4


The last time I had to sign one of these, and for a pretty substantial severance based on a decade of work, I thought there was a time limit to the disparagement clause. But I also could be mixing it up with the non-compete clause.
I despise these things. I very much want to write about my company when our little subsidiary goes belly up but am not sure where the line is--how much severance would it take to shut me up?
posted by etaoin at 7:02 AM on January 4


The notion that if the company cannot survive public critisisim it doesn't deserve to survive seems spot on.
posted by Brocktoon at 7:18 AM on January 4 [5 favorites]


This is why it's a good idea to be able to read a contract well, and to have lawyers who owe you favors.

I had to sign a non-compete clause when I was terminated from one job. I read it, and then gave it to a lawyer who had the same responses as I did:
1. non-compete clauses are basically unenforceable because they can't prevent you from making a living.
2. the severance contract was overall so badly written that it's likely the whole thing was unenforceable, and
3. given the shoddy nature of the company as evidenced by the contract, the chances were that they weren't going to be around long anyway.

3. turned out to be true.

I'd personally sign any non-disparagement clauses, and not change my behavior one whit. If they sue me, they Streisand themselves. And I generally try to be somewhat polite about my ex-employers, until they go out of business...
posted by lupus_yonderboy at 7:52 AM on January 4 [1 favorite]


I work in advertising. If non-competes were ever enforced in advertising, no one would ever work.
posted by lodurr at 7:59 AM on January 4 [1 favorite]


I'm lucky enough to have never yet been laid off or fired or whatever, so I've never gotten a severance package, and I don't think I really understand them. I would expect that if I were to get laid off, that would be that; I wouldn't expect that my erstwhile employer would give me any money after I stopped working for them. I don't really understand why they would. But when I once spoke to a coworker of mine about this subject, he said that he would expect several months severance pay if he were laid off.

But why? Surely most corporations aren't doing this out of the goodness of their hearts. What seems to be the most likely reason I can think of is essentially exactly what's being described here: "We'll give you some more money in exchange for certain behavior from you regarding us". Except for rare instances where the corporation really is looking out for their employees' well-being, isn't this what all severance packages are? I think I'm misunderstanding something.
posted by Flunkie at 8:23 AM on January 4


But why?

It's about power differentials.

Because you have entered into an agreement with the company whereby they will recompense you for your time and effort.

If you decide to leave, or if you decide to behave in a way that gives them grounds for termination, that's on you; you've chosen to forgo future income.

If they decide to terminate you (without cause) you have no power to do anything about it, and you might well be completely and totally screwed financially. Severance pay is a way of balancing that powe equasion.
posted by feckless fecal fear mongering at 8:30 AM on January 4 [3 favorites]


Considering how little the NYT pays for op-eds, and how few outlets there are for pieces giving readers the inside scoop on Byliner, I'd guess he's got a book in mind. Maybe a roman a digital clef?
I got fired from a popular Entetainment! cable channel for "gossiping." I remarked that it was like getting fired from Hell for turning up the heat. Quote made it into a couple of showbiz columns, and what could have been handled quietly become a short-lived but deliciously wicked meme. I never signed the NDA. But the dogs bark and the caravan moves on and no one cares.
posted by Ideefixe at 8:32 AM on January 4 [4 favorites]


Non-disparagement absolutely standard in Canada; so much so, that my lawyer didn't even comment on it. What they did refuse to do is provide any form of reference beyond what was in my record of employment.
posted by scruss at 8:39 AM on January 4


Severance pay is a way of balancing that powe equasion.
I understand why in the interest of fairness and decency there should be such a thing as severance pay. What I don't understand is why corporations which are not legally compelled to be fair or decent would take it upon themselves to be fair or decent.
posted by Flunkie at 8:42 AM on January 4


Sometimes it's because they're actually fair and decent, or at least the people empowered to make those kinds of decisions are. More likely, it's believed by the company to be win/win: since the decision has been made to end the employment anyway, the company gets something (NC/NS/ND/release of claims) and hopes it maybe buys some goodwill; the employee gets some money that they wouldn't get if they were termed without severance.
posted by MoonOrb at 8:53 AM on January 4 [1 favorite]


My guess? Couple reasons. First, oddly enough, the free market. Some companies pay severance, thus becoming more attractive to work at. Other companies then have to follow suit to become desirable places to work.

Also, it's probably easier to gruntle an employee with a (often small) bit of cash than to risk Disgruntled Middle Manager Jo getting pissed off and going to the papers.

I do believe though that for some companies do try to act fairly and decently to their employees. And for some companies paying severance would just be de rigeur as part of everyone's total compensation package.

All that being said, it seems obvious to me that more and more companies in the USA are realizing they really don't have to offer severance, the job market being what it is.
posted by feckless fecal fear mongering at 8:54 AM on January 4 [1 favorite]


its shakedown phase?

Interesting turn of phrase, given the circs.
posted by chavenet at 8:56 AM on January 4


I understand why in the interest of fairness and decency there should be such a thing as severance pay. What I don't understand is why corporations which are not legally compelled to be fair or decent would take it upon themselves to be fair or decent.

I'm not an expert, but I thought it was more an issue of not having an "open exposure" for someone who could come back and make trouble for the company. In a sense, you are agreeing to part ways over this contractual agreement (namely, money). So, the parting isn't entirely unilateral if it comes to a court review later, if necessary. A settlement, on some level, has already been negotiated.

I'm also going to guess that there is a psychological benefit, in that whoever gets laid off isn't as steaming mad on the other end of the process as they could be. Although it's not an ideal parting, I would think that placating feelings is beneficial for avoiding at least some future litigation.
posted by SpacemanStix at 8:58 AM on January 4


I'd like to hear from the legal eagles around here how precedent developed so that businesses can violate basic constitutionally guaranteed rights (like freedom of speech and association, privacy rights, etc.), and we all think this is normal. Is it really simple? Like, the Bill of Rights just says the government can't do such and such, but doesn't mention Wal-Mart? If so... wow. Dumb.

Whatever the reason, it's a body of legal precedent that needs to be blowed up real good (where's Big Jim McBob and Billy Sol Hurok when we need them?)
posted by mondo dentro at 9:05 AM on January 4


mondo dentro, it's exactly for the reason you mentioned: the Constitution guarantees us from freedom against government action, and says virtually nothing about our interactions with non-governmental actors. The Constitution presumes that people have the freedom to form contractual relationships with one another, and the presumption is that the government won't interfere in those relationships.
posted by MoonOrb at 9:18 AM on January 4 [3 favorites]


Unless your post there was satire? Which it now looks as if it was. It's still early in my day here.
posted by MoonOrb at 9:19 AM on January 4


But why? Surely most corporations aren't doing this out of the goodness of their hearts.

From a corporate perspective there are three major practical reasons:

1. Lawsuits. Even when letting a single individual go the resulting lawsuit can cost a lot more than two week's pay to get dismissed. A class action following a layoff could be devastating just to litigate and even worse might succeed. There are lawyers who specialize in pursuing negligence by company officers and they're always ready to go.

2. Morale. The phrase "the first round of layoffs" is one that everyone is familiar with and employees who survive the first are very aware they may be part of the second. Knowing the company will provide them with a cushion can mean a lot to people and possibly prevent them from leaving. It also means they aren't in daily contact with deeply bitter ex-coworkers.

3. Competitive Advantage: Companies that have had layoffs are at a disadvantage when it comes to hiring talented workers. A reputation for generous dealings with ex-employees can go a long way towards counteracting that.

There is also the non-practical reason that it is the right thing to do. Corporations as entities don't have that concept, but corporations are made up of people who frequently do. The question of how much money can and should be allocated gets murky fairly quickly, but there are people pushing to get at least something done.
posted by Tell Me No Lies at 9:26 AM on January 4 [5 favorites]


just says the government can't do such and such

The government can and frequently does have people sign contracts that restrict their freedom of speech. Every government job with a security clearance for example.

There's no law anywhere suggesting you can't voluntarily sign away your right to free speech.
posted by Tell Me No Lies at 9:31 AM on January 4 [1 favorite]


MoonOrb: Nope. It wasn't intended to be satire.

When we talk about flaws in our founding documents caused by things the framers "couldn't have envisioned", this seems to be among the worst. If one claims that there are inalienable rights endowed by a Creator, why on earth would any entity be permitted to override those rights? I suppose the failure of foresight in this case is mostly tied to the development of the modern eternally-existing corporation, roughly 100 years after the founding of the country, and the parallel developments in related legal precedent?
posted by mondo dentro at 9:34 AM on January 4 [1 favorite]


The first time in '05 I was laid off from a Large Blue Computer Company and they gave me three months plus six months health insurance, some training money, a session at a resume service and a few other assorted fabulous parting gifts. Plus they gave me a month's notice but told me not to show up anymore so it was effectively four months severance.

From what I hear, still pretty much the case at that company as of this summer. I think the severance weeks is dependent on years of service though, like a week per six months, with a cap. The month's notice is to "find another job within the company" in theory, but in reality there are none.
posted by smackfu at 9:37 AM on January 4


The Constitution says nothing about a creator, and does not claim that any of the rights it protects originate from one. More to your question, though, it seems to me that at the very least there's a difference between two parties agreeing that one of them won't say some particular thing and one party forcing another to not say that particular thing.
posted by Flunkie at 9:45 AM on January 4


The Constitution says nothing about a creator, and does not claim that any of the rights it protects originate from one.

Thanks. I know that. But the same "crowd" was involved with both things. I'm very informally speaking to the framers "original intent", and saying that any actual inalienable rights shouldn't be violated by my employer, either. That fact that we can routinely be jerked around like this seems like a serious bug in the founding source code.

... it seems to me that at the very least there's a difference between two parties agreeing that one of them won't say some particular thing and one party forcing another to not say that particular thing.

Agreed. My original question is precisely directed at how the precedent evolved to the point that the requirement that fired employees "speak no evil" on pain of losing severance or other benefits is seen as not forcing them. I realize, though, that at some level this is just rhetorical: I know how it evolved that way--class warfare, the rich make the rules, etc.
posted by mondo dentro at 10:07 AM on January 4


Sorry mondo dentro, when I re-read your question I wasn't sure. I think the heart of the answer to your question arises out of three ideas: first, the freedom to allow people to freely contract is a significant freedom, and one that the framers and I'm wagering most constitutional scholars would still see as paramount, even if they were to have the foresight to consider the modern corporation-heavy business world that exists today. The second concept is that the government, as an entity, is much more powerful than any particular corporation, no matter how powerful you think corporations are. The third idea is that between the marketplace and the government's ability to regulate corporations, there are already substantial protections for the rights we think are deserving of constitutional protection.

In the case of a non-disparagement clause, for instance, even though it is crappy and onerous and not a business practice that we like, we can agree that the infringement on an employee's ability to speak freely is not really that great, right? At least when you compare it to the rights protected against government action in the Constitution. Even at its most expansive, it's limited to saying bad things about that particular employer. And all the employee has to do to guarantee that they're not bound by this agreement is to refuse to take the severance pay--assuming the agreement is enforceable in the first place.

Now, yes-we can all agree that an employee has diminished bargaining power and it's crappy for an employer to insist upon the non-disparagement clause for something like 2 weeks pay, but when it comes to weighing that against a constitutional degree of protection, it really pales. I think standard, garden-variety non-disparagement clauses for tiny severance packages suck, and that businesses shouldn't do them. I also think that the constitution should only regulate government action.
posted by MoonOrb at 10:10 AM on January 4 [2 favorites]


localroger: "I have worked for the same company since 1985. I am starting to feel like I'm missing out on something."

Working in tech, I'm resigned to having to move jobs every three to five years for the rest of my career. Just to make both of us feel old, the company that I interviewed with just before Christmas was founded by two people who were born around 1985.
posted by octothorpe at 10:14 AM on January 4 [1 favorite]


To answer your question about precedent, I think the precedent has always been that people are free to contract. If the argument is that the employee is actually not free to contract, then they have an argument why the contract is unenforceable. Also, it's pretty significant that employers are not obligated to offer severance. If they were obligated to pay severance, it's doubtful that they could then enforce an end-of-employment agreement whereby the employee agreed to a non-disparagement clause in order to maintain the severance they were already entitled to--it wouldn't be supported by consideration, which is necessary to a contract.
posted by MoonOrb at 10:14 AM on January 4 [2 favorites]


if you're fired for cause, you cannot collect unemployment

Not to derail but this is a myth. People fired for the usual causes (bad fit, incompetence, doesn't get along with the boss) are usually fully eligible. Link.
posted by Wordwoman at 10:19 AM on January 4 [1 favorite]


Thanks, MoonOrb. I found your replies very clarifying.
posted by mondo dentro at 10:20 AM on January 4


Actually, unfettered freedom of contract has been a debatable issue for more than a century. It has been used as a justification for many injustices, from slave wages, to child labor, to company stores, to untenable work weeks and unsafe working conditions. Any concept of fairness requires an understanding that a worker automatically comes to the table with diminished bargaining power in comparison to the employer.
posted by Benny Andajetz at 10:40 AM on January 4 [6 favorites]


....unfettered freedom of contract....

... doesn't really exist, except as an idea, and as you point out, it's a bad one. Contract clauses that would require the assignee(s) to violate either standing law or prior contracts that are known to the party initiating the agreement, are not valid. There are also laws on the books that explicitly state that certain types of things can't be enforced by contract; and there's precedent to the effect that you can't be forced to comply with a contract that bars you from pursuing a livelihood.

Thing is, you'd usually need competent legal representation to enforce any of those claims, and most people don't have that, and especially in the disadvantaged position of someone recently discharged from their employment, you won't be able to afford it. So as long as an employer can get some junior judge, often elected or otherwise poorly qualified, to judge in their favor, you're kind of stuck.

So while unlimited freedom of contract doesn't exist, there's a lot of bad, unlawful contractual shit they can do to you.

That said, I've only very, very rarely heard of a non-disparagement clause being invoked. For my own part, I'd be really reluctant to disparage for simple reasons of professional networking. They may "deserve" it -- but what does it cost me to cut them down? Maybe a job. Not worth it, unless there's some significant harm being done.
posted by lodurr at 11:23 AM on January 4 [1 favorite]


For my own part, I'd be really reluctant to disparage for simple reasons of professional networking.

Good point. I think I'm inclined the same way. You're illustrating how, for non-sociopaths, social relationships are very important and have an inhibitory function for this sort of thing. My question would be, though, what "disparagement" means in practice. Is criticism of your former employer's operations, managerial style, etc. the same thing, legally speaking, as calling your former boss an asshole? My guess is, unfortunately, yes.
posted by mondo dentro at 11:36 AM on January 4


Severance agreements aren't something that executive teams spend much time thinking about. The main job of both the general counsel and the HR director is to reduce risk for the company, and severance agreements are one way they do that. I've been a C-level executive in the U.S. for more than ten years now and while various HR directors have brought me all kinds of policies to review, I've never seen a severance agreement in that pile. In fact, I'll just admit that I don't even know what the severance agreement looks like for the current company I'm in. The point being: this agreement is something that the GC and the HR director cook up without a lot of review. The nondisparagement clause thing is common/universal. I guess when HR directors go to conferences or network, this is something that gets transferred from company to company like a meme. I'm not a lawyer and don't have a background in law, but I do have plenty of practical experience with firing people for cause, laying people off, and dealing with angry ex-employees. Here would be the three things that I would want all of the U.S. readers to know about severance agreements:

#1 If you do disparage the company after you leave, and if the company finds out, and if they care (those are already two pretty big ifs), the first thing the GC is going to do is send you a cease and desist letter. If you had signed a severance agreement with a nondisparagement clause, I'm sure that would warrant a paragraph in the letter. If you didn't sign, you'll still get a letter. After that, what happens is going to depend on you. One example of the kinds of thing that warranted a response from our GC was setting up straw-man blogs criticizing the company and individuals in the company and then working the Google results with SEO techniques to get them to come up on the first page of results for things customers might search on. Something like complaining on facebook or twitter wouldn't even be a blip on the radar.

#2 There will be other terms in the severance agreement that restrict your future rights that are far more onerous than the nondisparagement clause. That is the stuff you should be worried about. Also, not everything in the agreement will necessarily be tied to your payout. You've got to read the whole agreement carefully.

#3 Severance agreements are negotiable. Whomever gives you the agreement to sign will either be your manager or someone in the HR office. They may or may not even know what is in it; what they do know is that getting that thing signed is part of the exit process. If you just refuse to sign, sure, you are making life difficult for them, but you are forfeiting what might be a substantial payment and maybe some future considerations. Trying to negotiate costs you nothing in the short term and may improve your position. If there is a nondisparagement clause that bothers you, just ask to make the clause mutual (that the company will also agree not to disparage you) and see what happens - it is a perfectly reasonable request. Negotiating will break the script for them (they hand ex-employee paper; ex-employee signs; they pay ex-employee) which might work to your advantage.
posted by kovacs at 11:46 AM on January 4 [10 favorites]


When I resigned (voluntarily!) my software engineering position at Yelp they handed me one of these contracts and waved a whopping $500 in my face to try to get me to sign it.

Well if anyone would know what the cost of making a bad review go away is, it's Yelp.
posted by phearlez at 12:40 PM on January 4 [13 favorites]


~if you're fired for cause, you cannot collect unemployment
~Not to derail but this is a myth. People fired for the usual causes (bad fit, incompetence, doesn't get along with the boss) are usually fully eligible.


While true, an employer can contest the awarding of unemployment compensation. Another Nolo link.
posted by Thorzdad at 1:10 PM on January 4 [1 favorite]


NYT pays $150 for op-eds, but the Why I'm Leaving Goldman Sachs author got a 1.5mil book deal. Blythe is a terrific writer, but I would be surprised if he wants to tell more about this gig.
posted by Ideefixe at 2:00 PM on January 4


Well if anyone would know what the cost of making a bad review go away is, it's Yelp.

Good one. :-)
posted by Tell Me No Lies at 3:10 PM on January 4


Cross it out and sign it.
posted by cellphone at 4:38 PM on January 4 [1 favorite]


I have prepared for this eventuality by drafting my own severance counter-offer. I call it the "Go Fuck Yourself" clause.
posted by It's Raining Florence Henderson at 4:50 PM on January 4 [3 favorites]


The promise of severance also helps workers going when the layoffs are coming but people don't know when. All kinds of havoc can be created by people who think they're going to be dumped out onto the street. The requirement for WARN letters means people can't just get locked out over night in a mass layoffs.
posted by etaoin at 9:00 PM on January 4


"if you're fired for cause, you cannot collect unemployment"

In California, cause means "punching someone" or "putting one's dick in the mashed potatoes," and not simply "fired." You have to do something that very nearly rises to the level of lawsuit or criminal case to not get unemployment.
posted by zippy at 12:24 AM on January 5 [3 favorites]


I don't know, my friend's ex-employer laid her off and then did whatever it could to her (and to previous ex-employees) to prevent her from getting unemployment afterward. They've been sued several times and the plaintiffs won over that. I don't think it's as easy as you say there.

Remember, these days anyone wants to get out of paying money for anything. You pretty much have to be out of work "through no fault of your own," and any kind of firing is your problem, bitch.
posted by jenfullmoon at 9:22 AM on January 5


I don't know, my friend's ex-employer laid her off and then did whatever it could to her (and to previous ex-employees) to prevent her from getting unemployment afterward

What the actual fuck why? Why is a company suing to prevent an ex employee from receiving the government benefits to which they are entitled and which they have paid in to?
posted by feckless fecal fear mongering at 9:40 AM on January 5


zippy: "You have to do something that very nearly rises to the level of lawsuit or criminal case to not get unemployment."

jenfullmoon: "I don't know, my friend's ex-employer laid her off and then did whatever it could to her (and to previous ex-employees) to prevent her from getting unemployment afterward. They've been sued several times and the plaintiffs won over that."

I think I'm confused. So the ex-employer tried to prevent the ex-employees from getting unemployment, the ex-employees sued, and the plaintiffs won? Isn't that how it's supposed to work? Obviously it would be better to skip the company-behaves-illegally-then-gets-sued-and-loses step, but it sounds like the court looked at their no-unemployment attempt and said "Nope!"

Or am I misreading your description of the situation?
posted by Lexica at 10:05 AM on January 5


if you're fired for cause, you cannot collect unemployment

Not to derail but this is a myth.


As I said, this is the case in MA. From your own link:
State law determines whether a fired employee can collect unemployment.
My statement is only "a myth" if you didn't bother to read all of it.


Why is a company suing to prevent an ex employee from receiving the government benefits to which they are entitled and which they have paid in to?

Because the company gets billed for a portion of the amount the former employee collects. This also varies by state.
posted by Kirth Gerson at 12:04 PM on January 5


"In California, cause means "punching someone" or "putting one's dick in the mashed potatoes," and not simply "fired." You have to do something that very nearly rises to the level of lawsuit or criminal case to not get unemployment."

God, if only. When I got canned at LFP, I didn't get unemployment.
posted by klangklangston at 12:36 PM on January 5


Because the company gets billed for a portion of the amount the former employee collects. This also varies by state.

What. Employers here have to remit a certain amount (there's a formula, I don't know what it is) from each employee's paycheque to EI. Some is a deduction directly from the employee's pay, and some (unless I am greatly mistaken) is a premium paid by the employer.

At no point can employers interfere with the benefits to which you are entitled. Everyone pays into the system before use.
posted by feckless fecal fear mongering at 1:09 PM on January 5 [1 favorite]


And actually on postview that is seriously goddamn fucked up that employers can sue.

Seriously, WTF America? It's almost like there's a palpable antipathy towards those who actually have to work for a living.
posted by feckless fecal fear mongering at 1:10 PM on January 5 [1 favorite]


It's almost like there's a palpable antipathy towards those who actually have to work for a living.

No "almost" about it, actually.
posted by scody at 1:11 PM on January 5 [2 favorites]


fffm: a way to think about the American theory of unemployment compensation is that it is an insurance program for those who lose their jobs through no fault of their own. When people lose their jobs because they were doing things like, for example, falsifying time cards, harassing their co-workers, skipping shifts without calling in, being rude to customers or clients, quitting for their own personal reasons, and so on, under this theory it would be inappropriate for the ex-employee to collect insurance. These are the easy cases.

Because an employer's contributions to the insurance program depend (on many states at least) on how many successful unemployment claims are made by their former employees, there is still an incentive to challenge claims when the circumstances are not as clear, like when an employee's performance is absolutely abysmal and the perception is the employee is not even trying to do a good job, when the employee is rude to co-workers, when the employee repeatedly shows up late or misses shifts even when they call in, violated workplace conduct policies, etc.

There may also be those employers who are just evil who challenge every claim, although this is probably not worth their time (or wouldn't be in my jurisdiction where unemployment claims are routinely granted, even when employees do things like commit workplace misconduct and lie about it).
posted by MoonOrb at 1:31 PM on January 5


Kirth, you are perpetuating the myth. From the Massachusetts unemployment web site:

2. Will I be eligible for UI benefits if I am fired?
Massachusetts General Laws, Chapter 151A, governs the unemployment insurance program. According to the law, you may be eligible if you were fired for poor performance. However, if your employer is able to show that you were fired for deliberate misconduct or violation of a company rule, you may be disqualified.


I guess I feel strongly about this, because when people believe this myth, they may not file and they may not appeal unless their termination was an unambiguous layoff.
posted by Wordwoman at 1:43 PM on January 5 [1 favorite]


Because an employer's contributions to the insurance program depend (on many states at least) on how many successful unemployment claims are made by their former employees, there is still an incentive to challenge claims when the circumstances are not as clear

That's just so... backwards. Obviously you shouldn't get EI if you're terminated for actual cause; you decided to act in a certain way, you lost your job, you're on your own as far as I'm concerned. But to make it in every employer's financial interest (because, as you say, they're assessed based on past claims what the fuck that is just insane) to challenge every or the majority of unemployment claims is just. It's. I DO NOT HAVE WORDS.

Seriously I am seethingly angry on behalf of Americans who are getting fucked over so hard, when the entire world is full of examples of how to run a country and not just grind people into the dirt.
posted by feckless fecal fear mongering at 1:59 PM on January 5 [1 favorite]


fffm, you're laboring under the assumption that the people in power actually give a shit.
posted by octothorpe at 2:25 PM on January 5


But to make it in every employer's financial interest (because, as you say, they're assessed based on past claims what the fuck that is just insane) to challenge every or the majority of unemployment claims is just. It's. I DO NOT HAVE WORDS.

I was thinking about this a little bit. This seems to be a consequence of the decision to place more financial responsibility for the termination of workers on the companies who terminate them. So on one hand there is an incentive not to terminate employees; but the corollary is that on the other there is an incentive to contest unemployment compensation claims when you do.

I'm not claiming this is the optimal solution for this but I can't say that it makes me seethe with rage.
posted by MoonOrb at 3:26 PM on January 5


It's almost like there's a palpable antipathy towards those who actually have to work for a living.

It's not that personal actually. Corporations are with rare exception focused on getting and keeping money and the policies get set with that in mind. A corporate entity has no mechanism for understanding people.

As for who sets the crappy policies, well.... it's said that you know you're in a bureaucracy when a room of people who all think A get together and agree on B. I've been in that room for technical policy discussions a few times and it's really ugly what can come out of them.
posted by Tell Me No Lies at 6:52 PM on January 5 [1 favorite]


I'm not claiming this is the optimal solution for this but I can't say that it makes me seethe with rage.

The bare minimum optimal solution is to force employers to pay into EI, and not make it financially compelling for them to contest every EI claim.

oh wait that's what we do in Canada too bad the USA can't learn from ANYONE ANYWHERE EVER
posted by feckless fecal fear mongering at 8:48 PM on January 5 [3 favorites]


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