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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.
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.
The more secrets a society has the worse life is for all. Secrets are not supposed to be how you do business; we need more whistleblower protection, not less.
Why is this modded -1? Can we get some meta-moderation on this?
...except it was a severance agreement. I'd been fired, and there was a reasonably decent (6 weeks of pay) severance agreement. However, it included both the clause that I would never ever make an disparaging statement about the company, nor that I would admit the existence of this severance agreement or disclose any terms in it. This was for a small (few hundred employee) tech company in San Francisco.
I pushed back. I thought it was completely unreasonable to give up a part of my freedom of speech for this. At the time, I thought I might stay in the same general field (I haven't), and it would have been very constraining to never be able to criticize this company again. But, also, on principle, I did not like signing away my freedom of speech like that. What makes me sad is that almost everybody I talked to told me not to be ridiculous, to sign it. I was potentially giving up four weeks of severance pay (beyond the "two week notice" requiredby law), at a time when I'd just been fired and had no other job lined up. I was told by friends that it was irresponsible not to think about my wife and my own economic need for a stupid stand on principle. This makes me so sad, because at least nominally it was exactly these kinds of principles -- freedom of expression -- on which this country was supposedly founded. But, now, people find it childish and unrealistic to stand on principle.
I didn't have any serious complaints about the company at the time. Over the previous ~year it had undergone some reorganization that I thought was destructive, and I thought the circumstances leading up to my firing were particularly stupid, but I didn't have any sexual harassment complaints or anything like that. But, still, just because you don't have a big issue right now does not mean you should sign away a fraction of your freedom of speech for all time.
The other sad thing was that at one point, somebody from HR told me on the phone, "we're not trying to limit your freedom of expression, we just want you to manage your communication". People in the corporate world really believe things like this, which is rather alarming.
In the end, I managed to convince them to change it to "no disparaging statements for a year, no untrue disparaging statements ever". I decided I could live with that. Technically, I'm breaking the agreement right now by talking about it, which is why I post anonymously and don't name the company. I think that's stupid too, but I also know more than to risk putting myself up against the lawyers of even a small company.
The role of the Constitution's free speech rights is to limit the ability of the government to infringe on speech. It doesn't have any influence on speech not involving the government. So private parties are free to negotiate contracts limiting what they will say and to whom, and thus you have NDAs and non-disparagement clauses and even civil settlements where the parties agree not to disclose the settlement terms.
I think there's a more general civil rights argument to be made that there should be limits on corporations ability to limit free speech in some circumstances.
Employer-employee relationships are inherently unbalanced and somewhat coercive, so I would bar non-disparagement agreements. You're not required by force of law to sign them, but for most people not signing them has substantial economic and career penalties which reduces most people's freedom to act.
I would also require that large public spaces that are privately owned (like malls) should be required to accommodate public protest. We're rapidly losing truly public spaces ("the town square") and replacing them with privately owned versions of them. More nefariously, these large developments are often underwritten by local government in some way (bonds, TIF, paying for infrastructure upgrades like roads and sewers).
The problem isn't that corporations are demanding unreasonable things. The problem is that people just don't give a damn. Ideally people would tell an employer demanding a non-disparagement agreement to go take a hike. You assume the ideal must be true, so you assume the only way people would sign their rights away is if they're coerced. But employers don't have to coerce employees to sign non-disparagement agreements. People think of the situations where the agreement would kick in, and they're so rare that they think nothing of signing it. The exact same thing is happening in the privacy front. People are willingly trading their personal info for free web space and email service.
Thomas Jefferson said " the tree of liberty must be refreshed from time to time with the blood of patriots & tyrants." People concentrate on the "blood" part and assume it to mean that we must be willing to fight and die against tyrants who would take away our freedoms. I'm starting to think the "time to time" part is more important. If people don't occasionally experience living under tyranny, they grow complacent, start taking their freedoms for granted, and think nothing about signing them away. Only if you've had to fight and die for those freedoms do you truly appreciate their value.