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

No

[Anonymous Coward]

Is all I am allowed to say.

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?

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

[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."

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.

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:Right ot not right?

[swb]

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).

This matches exactly my experience from 2009

[Anonymous Coward]

...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.