Are Nondisparagement Agreements Silencing Employee Complaints? (cnbc.com)

cdreimer writes, "According to a report in the New York Times, 'nondisparagement agreements are increasingly included in employment contracts and legal settlements' to hide abuses that would otherwise be made public." The Times reports: Employment lawyers say nondisparagement agreements have helped enable a culture of secrecy. In particular, the tech start-up world has been roiled by accounts of workplace sexual harassment, and nondisparagement clauses have played a significant role in keeping those accusations secret... Nondisparagement clauses are not limited to legal settlements. They are increasingly found in standard employment contracts in many industries, sometimes in a simple offer letter that helps to create a blanket of silence around a company. Their use has become particularly widespread in tech employment contracts, from venture investment firms and start-ups to the biggest companies in Silicon Valley, including Google... Employees increasingly "have to give up their constitutional right to speak freely about their experiences if they want to be part of the work force," said Nancy E. Smith, a partner at the law firm Smith Mullin.
Three different tech industry employees told the Times "they are not allowed to acknowledge that the agreements even exist." And Google "declined to comment" for the article.

Comments

Double Down

[Anonymous Coward]

Ann Lai, a former employee, said in her lawsuit filed in San Mateo Superior Court in California that she had complained to her bosses about sexism, discrimination and inappropriate behavior in the workplace, and that Binary used the nondisparagement provision in her employment contract to threaten her and prevent her from talking about why she had quit her job.

If these threats come in, it is time to double down.

Call the police to report the sexual harassment AND file a lawsuit.
Both of these (reporting a crime to the police and filing a lawsuit) are immune to any silly non-disparagement clause.

An anonymous tip to local and national media reporters about the court docket where the case was filed?
That's just the icing on the cake.

Re:Double Down

[Kraven9]

AC calling for people to bravely expose themselves on principle. Just another loudmouthed idiot on /.

Re:Double Down

[Pollux]

Call the police to report the sexual harassment AND file a lawsuit.

Say someone did. These are only allegations made against the employer. Nothing is proof of fact.

Then when it comes to the lawsuit, corporate will bring its high-priced lawyers who are paid to know everything about corporate law. Up against that Goliath, most everyone chooses to settle. And in that settlement agreement? A non-disclosure clause.

So when the New York Times tries to write a story about what happened, all they can say was "According to public records, an allegation was made against the employer. A settlement was reached regarding the allegation. Neither side is commenting on the matter."

Discourage, rather than enforce

[gurps_npc]

These types of agreements are always about the threat rather than the act.

That is, they exist not to actually stop people from reporting, but instead to discourage them. No reasonable judge would let you sue someone for reporting a crime.

But most of the time it is not entirely clear their is enough evidence of a crime going on, not until after the trial has begun.

So when your boss fires you after verbally demanding sex, you will think twice about suing, because you know that if you can't prove it, they might go after you. Honestly, chances are very low they would sue you for speaking out and even less that they would succeed.

But the threat of the law suit is enough to stop you from trying, at least unless you have a smoking gun email. (and now adays it is almost always an email.).

Who said anything about a crime?

[Roger W Moore]

No reasonable judge would let you sue someone for reporting a crime.

What guarantee do you have that you'll get a reasonable judge? Besides, who said anything about a crime? It is entirely possible for companies to engage in highly unethical, but completely legal, activity e.g. hiring child labourers in third world sweat shops to make their products which now does not happen because it was brought to the publics attention. Zero hour contracts are another example.

Large companies are beginning to have as much power over our lives as governments and this means that they need to start having the same limits on that power as a government.

Why even ask the question?

[hyades1]

Are Nondisparagement Agreements Silencing Employee Complaints?

If they're working as intended, yes. Of course they are. That's their purpose.

Right ot not right?

[petes_PoV]

Employees increasingly "have to give up their constitutional right to speak freely about their experiences if they want to be part of the work force,"

It would seem that the U.S. has a pretty poor constitution if it can be superceded by contract law.

Isn't the whole point of a country's constitution that it stands above all "lesser" principles and laws.

Re:Right ot not right?

[AK Marc]

It can't be superseded by contract law, but raising the constitutional issue is beyond the finances of a wage-earner, so the contract wins.

Re:I can hear it now...

[mvdwege]

For all practical purposes, they are very enforceable.

If a company with all its resources decides to sue a single individual, it's a foregone conclusion. Unless they manage to find a backer with deep pockets, they'll be ruined fighting the suit, no matter the fact that the judge might throw it out. By the time it would have come to a hearing they'd already be in deep shit.

Re:No

[drinkypoo]

The simple, obvious solution is not to work for companies that have such an agreement.

So what do you say to someone who has offers only from such companies? Live on the street and starve?

Re: No

[BarbaraHudson]

If those are the only two choices available, then it's pretty obvious that you are not completely free in your choices. Don't try to justify mistreatment of workers because "we're the only choice they have."

If those are the only two choices, your economy is broken. Economic serfdom or starvation being the only two options for anyone is simply dysfunctional, and ultimately contributes to the breakdown of social cohesion and the rise of crime.