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.
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.
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.
Companies could save themselves a lot of pretense with exit interviews and just assume the following:
If a good person leaves your company, it is because of one or more of the following:
1. You can't (or won't) pay them as much as someone else.
2. They aren't happy in the culture of your company.
3. They aren't happy with the type of work they are doing.
4. They don't see a bright future with your company - either for themselves, or for the company, or both.
5. They don't trust the company (or, possibly, the people they work with).
6. It isn't one item, or one incident, but over their time with the company, many little things that eroded their desire to work there. A person leaving today might have become fed up with the company two years ago when some botched project burned them or a manager handled something completely inappropriately. People don't usually just quit on the spot.
7. They want to work for themselves. Which means, they don't want to work for you. It really isn't you, it's them. (Wish them good luck and be sincere)
8. They can get a better deal (non-monetary) somewhere else and it outweighs the job. For young people, often the job is part of their identity. Once people get married and have kids (or just get a little older), they realize that working for someone else is not much of a reward. They may want a more flexible schedule, may want to just physically be closer to their home, any number of things that you may not be able to control.
9. You see them as a replaceable part and they know it. (Surprise!)
Name another reason that doesn't fall under those nine. I'm honestly not trying to argue, just asking. There aren't really that many reasons why people leave. People leave because they aren't happy or aren't getting paid enough or they have a personal situation that dictates it. There are really just 3 reasons but I elaborated because I expected people to start chiming in with all of the reasons I missed.
Those reasons are so vague, though. Alright, so "people aren't happy", how should I go about fixing that as an employer? Step 1: find out what they are unhappy about. Hence the exit interview.
IMHO, this information should be gathered well before exit, e.g. through regular 1-on-1's, but that's another discussion.
An exit interview allows you to be more candid than in a regular 1-on-1. When you're still an employee you're more worried about saying something that could affect your perception.
> They can get a better deal (non-monetary) elsewhere
Just won the lottery, close relative received terminal diagnosis, got pregnant, believed their horoscope, saved enough to retire - these are all cases where someone believes they can get more value for themselves by leaving their job.
Spouse has had an affair with a co-worker probably goes under "not happy with the culture"...
I probably wouldn't talk about any of those reasons in most situations.
People who leave usually negociate or talk up before they leave. If you need the exit interview, then your management is seriously unable to hear. In which case the exit interview won't be acted upon anyway.
So rather than ask the person like a grownup they should
wildly speculate in order to make everyone less
uncomfortable?
When a parent asks friends "look at this photo, isn't my baby beautiful?" the answer is information-free as everyone will say "yes, that is a cute baby".
Exit interviews are the same. But unlike the stuff with a parent, it doesn't have the social-bond-building value of gossip.
With an exit interview, in the best case you learn nothing and know it; and in the worst case you learn nothing but mistakenly think you learned something. Not bothering with an exit interview helps you avoid that mistake, and saves you time as well.
>When a parent asks friends "look at this photo, isn't my baby beautiful?" the answer is information-free as everyone will say "yes, that is a cute baby".
One of my life goals is to always answer this question honestly.
People who would get offended if you called their kid ugly are not the kind of people you'd want to spend time with? That's basically every person on earth.
Thinking that something is not beautiful is not the same thing as thinking that something is ugly. And there is a pretty obvious (though not to you, apparently) difference between being asked that question and me responding honestly, and me simply remarking, unprovoked, "boy, that kid sure looks pretty damn ugly, don't he?"
The kind of people I want to spend my time around are those who prefer honest questions and honest answers, as opposed to those simply soliciting me for a bit of verbal fellatio.
When I left a former job, I was very candid in my exit interview. My former boss and I discussed things that I didn't like about the job, and he was interested to hear some honest feedback from someone with nothing to lose. It didn't cost me anything and it helped him to get a feel for things that other people didn't like either but weren't comfortable coming out and saying.
Maybe if things were sour it would have been different, but in this case I thought it was productive and was glad to help.
The company should be having that grownup conversation well before I leave. If my manager does not know why I'm leaving, they haven't been doing their job as a manager...which may be one of the reasons I'm leaving. :-)
Of the companies I've worked for that hold exit interviews, and I've had conversations with ex-coworkers about what they said at the exit interview, it would appear that it doesn't make any difference anyway. So why open yourself up to any liability, or help relieve your ex-employer of any liability? Don't waste your time, or even their time for that matter.
That seems to be a lot of possible reasons. So once they see a good person leaving, what should they do to stem the flow? Having a list of nine possible reasons is nice, but if they don't know which one is the right one, it can make it very difficult to know what to change in response.
If the company couldn't be bothered to learn what I thought in the months or years I've been working with them, I don't feel any motivation to tell them now. An exit interview is essentially saying, to me, "We didn't care until you left."
There's also the fact that I find most interviews incredibly dehumanising experiences. Someone sits down and reads some set questions at you... bleh. Does anyone enjoy that? You want to know what I think, try having a conversation. If the emotional and intellectual investment on your side is you deigned to read me a list? Just... stuff that for a game of soldiers. I'm not going to put up some of my feelings and concerns in response to a list-reading machine.
Ultimately, if I've got a good relationship with my manager, she or he will know why I'm leaving without needing to sit down and treat me like some stranger who they can interrogate. If we don't have a good relationship, then under those conditions all they've really done is pay my wage in return for code, and when they stopped doing so they lost the right to my time and effort in any form.
Outright refusing it seems awkward and overly hostile to me, but I have done it while giving very perfunctory answers. When they dug for more I told them I was available for consulting. Quite simply there is no incentive to do any more than that.
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.
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.
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)
That's indeed true in California, but "at will" employment doesn't strictly require that. At-will employment means either side can terminate the employment arrangement for any or no cause, as distinguished from jurisdictions that require a reason for termination. It's still compatible with having a short notice period, e.g. requiring that employees give 2 weeks notice before quitting, and/or that employers give 2 weeks notice before termination.
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.
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.
There's a difference between "not trashing people" and not saying anything under threat of lawsuit. Pretty well anything can be interpreted as disparaging. You could say something as simple as "they fired me, I don't think it was fair." and find yourself liable.
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.
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.
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.
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.
Agree entirely on Emergency Fund, though I'm not doing so well on the front myself. Easy credit has many of us confused on that front and it's a painful lesson.
And well, not everyone on HN (or Earth) is a fabulous developer, more's the pity :D Plenty of IT positions are cog-like, in the eyes of management and leadership, and people have to fight to get entry-level helpdesk type jobs around here.
>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.
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.
If you can survive the gap between getting paid and getting the unemployment, which is why most people will take it. I would do the same if I were back in the states considering the job market. Who knows when I'd find another similar paying job.
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.
> 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.
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?
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.
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.
I wish I could say the same about NYC startups. I once worked for a place where an employee left to a competitor which infuriated the CEO. As a result he had a meeting threatening to track down anyone who left and get them fired. In addition he made everyone sign a non-compete agreement or risk being fired. This startup is still around and doing just fine. I've heard similar stories from other nyc startups.
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.
Of course it does, when you're talking about the government regulating non-governmental, private speech, such as this mythical law against employers saying truthfully that you were fired for cause.
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.
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.
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.
to verify that you actually worked there. they can also verify that what you put on your resume was your role. Eg I can't really get away with "CEO of Microsoft" from my time as a janitor there.
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.
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.
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.)
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.
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.
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?
Thanks for your data point. But I presume this was a small to medium sized company? At Big Co. HR is a faceless organization and I'm curious if people have succeeded negotiating with this beast?
I'm also curious: did you negotiate this after they offered you a job? It seems frustrating to get the job first and then turn it down because it never met your requirements? Is it reasonable to ask a potential employer about their own-time policy during the interview phase?
I've pushed back on contract terms with a large company that had included a non-compete clause not enforceable locally. Turns out they had an alternate contract which met local statute, and had used it in previous hires / mergers. Still makes me itchy to sign such terms.
When Marissa Meyer was hired by Yahoo, I found it interesting that her employment contract included some pretty familiar language:
In the fictional novel "Lost Boys" (the author's name tends to start flamewars on HN so I'm not mentioning it), a software developer travels across the country with his family to a new job and is presented with a horrible IP contract. He sweats and is nervous and anxious about it all weekend, and on Monday he tells his boss he won't sign it. The boss shrugs and pulls an alternate contract out of a drawer and hands it to the developer. They give the first contract to people who won't bother reading it, and the second (read: "fair") contract to anyone who has an issue with the first.
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.
I'm really bad with off by one errors haha. My last technique is if they verbally agree I follow it up with an email of them agreeing that I'm allowed to work on my side project. This was actually during a coop term, which is why I forgot.
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.
And that's fine and dandy, but chances are that the company composition is largely different today than it was when EA Spouse occurred. I understand that there is more to a company than a collective of individuals, but it might be a little misleading to still make EA-related decisions today based on the EA Spouse incident.
"Well, to be fair, given people like you, that's really no surprise."
A personal attack? Can we save the ad hominems for somewhere else? I fail to see how being an informed consumer is a problem. I care how/where my dollars are spent.
If you read the post you linked to, it quite reasonably says that EA is not the worst employer to work for. It's just that the Internet crowd thinks that it is. And what GP said was that this crowd comprises of people like yourself, which again is reasonable observation, not an attack.
My point is that, given that so many people love to hate EA (for better or worse, and regardless of whether their reasons make sense or not), it's really no surprise that EA is continually "awarded" such "honors".
Maybe you, knappe, have other (better) reasons to hate EA than those that relate to some ten-year-old drama that (probably) didn't personally affect you. Maybe you don't. But there is an Internet full of people who will probably never stop hating EA, no matter what.
A tsunami is composed of entirely different molecules of water as it travels, but it generally retains its nature and force. If you want to stand on shore and say, "Hey, let's not assume that it's still the same when it gets here," I guess that's your prerogative, but I'll be watching from the hills.
Water molecules don't tend to have their own unique and distinct set of beliefs and philosophies regarding a near-infinite range of ideas, a structured hierarchy allowing for an uneven distribution over power amongst themselves, nor the ability to actuate their will upon the world around them.
This isn't to say that enormous, profit-hungry companies will never tend to act like tsunamis, but I don't know that your comparison is generally valid.
Ever watch The Wire? The whole point of it, at least in my eyes, is that often, the villain is the system.
It is perfectly possible to see a company change every person in it and still have exactly the same behaviors, especially the pathological ones. I understand that from the employee's perspective, managers and execs seem to have near-infinite power. But from the perspective of any one of those people, they are vastly outnumbered; trying to change organizational culture is at best incredibly difficult.
Waves tend to hold their shapes. Culture is a wave through individual humans. Or, perhaps more accurately, a standing wave through which humans pass.
I'd love for them to try this in a EU country. (EDIT: Except the UK, which, in its attempt to become the 51st state, have an exemption from substantial parts of the relevant regulation)
"So you intend to violate the Working Time Directive? Because if you don't, I will have lots of spare time outside of my contracted hours".
Of course if they'd given me that line, I'd told them that if so they'd need to at least triple whatever offer I might have previously considered.
You can always opt back in to the Working Time Directive. You can do it at any time, and the employer is not permitted to discriminate against you for your choice.
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.
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).
Just be careful if you ever work on a side business or project that is similar to what your employer does. They can claim your IP rights under some circumstances by claiming it was what they hired you do to. And NEVER work on it at work or with work resources. Never.
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.
> 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.
'That sounds an awful lot like "If you've done nothing wrong, you have nothing to fear"'
Then your pattern matcher is giving you a false hit.
Your statement is about a government imposing unreasonable searches and seizure of you and your personal effects for the illusion of societal security.
The subject under discussion is about exchanging value for value in a voluntary transaction with you and a non-monopolistic employer.
Maybe you don't have anything disparaging to say now.
Maybe it comes out that your ex-employer was engaged in fraud. When you hear the news on social media you say "wow, Joe in accounting always did strike me as funny." You didn't mean it as disparaging. But the company does.
The whole issue of "if you have nothing to hide then you wouldn't mind the government looking into x" is a question of basic human rights. It's a question of whether or not the government has the right to invade your privacy even when there is no suspicion of wrongdoing. In a society that believes in the "nothing to hide" principle, citizens have no choices. They have no rights to privacy. They are trapped.
The "if you have nothing disparaging to say, don't worry about it" is a question of making a choice. If you choose to be able to disparage your employer in the future, don't take the severance. It would be your choice. If you choose to be careful of what you say, then take the money.
Monopoly affects whether or not you have choices in a society. The government is a monopoly, a monopoly that has the right to physically force you into compliance. Because of that simple fact, everything the government does or is allowed to do requires much greater scrutiny.
Your former employer (and anyone else you have done significant business with) can always find some flimsy basis for a lawsuit that will cost you several dozens of sleepless nights and $10k-$20k in lawyers fees, before it is thrown out by the judge.
What is stopping the other guy is they are not pissed off enough to throw $50k-$100k in the toilet for the lawyers fees and distraction to punish you unjustly.
Not signing does not actually protect you from baseless suits, if you run your mouth.
> Your former employer (and anyone else you have done significant business with) can always find some flimsy basis for a lawsuit that will cost you several dozens of sleepless nights and $10k-$20k in lawyers fees, before it is thrown out by the judge.
I think this actually cuts both ways, since companies usually have deep pockets and are responsible to investors. This is the only reason companies offer severance in the first place -- it's cheaper than dealing with the lawsuits.
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?
You are correct -- if the employer was providing nothing more than their existing legal obligation, there was no consideration on there part, and thus no contract. The point of course, then, is that signing gave away nothing.
Are you really asserting that employers who don't ask leavers to sign gag-clauses usually pay zero severance??
On the contrary, I assert that severance pay is normal with or without the gag-clause. So the employer has put the "value" of signing agreement at zero.
Severance payments are not legally required in most U.S. states. The company might usually make a severance payment (because ex-employees usually sign whatever the company asks them to), but if you don't sign their agreement, they won't give you a severance payment. So the cost of not signing is whatever the severance was worth.
You are assiduously avoiding my point. I said nothing about any legal requirement to severance pay. I asked you about what is usual. If there is no difference between the usual severance pay from gag- and no-gag-employers, then employers value the gag-clause at zero.
> 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.
I could be wrong but I think what you'll find is that a court would not uphold that agreement any further than the original amount of severance pay was worth.
That would be tantamount to signing a release to play in a softball league and then one of the other players attacks you with a bat. So, you can't get your hospital bills covered, now?
If you sign the agreement and then renege, it's not like they can sue you for a million dollars in damages if your "disparaging" remarks are true.
> it's not like they can sue you for a million dollars in damages if your "disparaging" remarks are true.
They can sue you for slander/libel with or without you having entered into the severance agreement. If we're talking about getting sued for entering and then breaking the agreement, we're probably not talking about "millions of dollars" but rather whatever the contract specifies the penalty for breaking the contract would be (and this is still up to a court to decide what's actually enforceable).
You can make fun on Donald Trump's hair or criticize a product from the consumer end (the cable company example) after signing non-disparagement.
What it covers is what you say about the company in the context (which can be broadly defined) of your being an ex-employee. If you say, "I worked at Time Warner Cable and it was run by idiots", that violates nondisparagement, because you're saying it as an insider. If you criticize the product not under your real name, or in private while not representing yourself as an ex-employee, you're probably fine.
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.
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.
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".
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.)
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.
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.
While working in at-will states, the severance agreement may in fact be the first document you sign that is actually legally binding upon the company in any way.
Most offers I see are clear that the letter is not a contract, and no contract can even exist without direct and explicit intervention by the CEO. And that seems to be a left-handed way of saying that if you do try to get an actual contract, you will not be successful, and the offer of employment will be withdrawn. I would very much like to see more at-will workers do same-day resignations when they change jobs, possibly even writing their own severance agreements.
It isn't unprofessional to abruptly walk out on the job if giving notice was never in the requirements. And most of the time, all that you get for the courtesy of making it easier for the employer to replace you is a payout for your accumulated vacation time, if anything.
It isn't unprofessional to abruptly walk out on the job
if giving notice was never in the requirements.
While you would be fully within your legal rights to quit without notice, and they would be fully within theirs to fire you effective immediately with no severance, both would be rude, contrary to custom, and unprofessional. It's reasonable and healthy to have customs that are not fully backed by the law, and trying to set up the law to fully match our senses of justice would be massive overengineering.
That's true in general, but conditional severance isn't the same thing as unconditional severance. Conditional severance, depending on the conditions, may well be a quid pro quo. If the money is compensation for e.g. a non-disparagement clause than it isn't also customary two weeks severance.
If such practices are widespread in a particular industry than that industry in practice doesn't provide severance. In those circumstances, it makes sense to withdraw the corresponding practice of giving notice. Or perhaps instead substituting a practice of conditional notice.
Having recently experienced such rudeness from an employer, I feel fully justified in recommending tit-for-tat retaliation from employees. Holding to human standards of decency is no longer warranted when your employer no longer views you as a human being.
Given the behavior of my current company towards all of its employees, I am looking to go elsewhere, and when I do, I won't worry overly much about burning those bridges behind me. The at-will sword is two-edged, so let the other guy feel the backswing occasionally.
> It isn't unprofessional to abruptly walk out on the job if giving notice was never in the requirements.
I disagree. One of the things that distinguishes professional behavior for me is having professional standards. That is, no matter what your clients or employers do, there are certain ways you plan to behave. For me that would definitely include a good handover.
Of course, my professional standards also include refusing to build things that are obviously dumb, dangerous, or destructive. But a disturbing number of developers feel that they should just do whatever their bosses tell them, no matter the disaster that they set in motion. So one could argue that a lot of IT-related jobs are more trades than professions, in which case a "take this job and shove it" exit could be more acceptable. Not because it isn't unprofessional behavior, but because professional behavior isn't expected.
When an employer treats the employee unprofessionally, is that not an indication that professional behavior is not expected? If you have an expectation that your employer will provide notice and severance before termination, as might be specified in an employee handbook and verified by departing colleages, then giving notice before resignation would be appropriate. If, on the other hand, your company has in the past terminated people without cause, notice, or severance, and the handbook states in no uncertain terms, "You LOSE. Good DAY, sir," then I think any gestures for your personal honor will be lost.
We have no union or professional association to protect our interests in my labor category. We have only the willingness to be faithful and courteous to those who treat us well, and to be stubborn and vindictive to those who would abuse our good faith. Bite the hand that beats you.
No. If ethics are purely determined by how other people act, they aren't ethics.
I think that professionals have to be careful in who they choose to work for, but once they start, they should act professionally. That includes leaving professionally.
If you don't make some allowance for other people's behavior in your ethical system, your ethical strategy can easily be subverted by someone else that does.
In game theory simulations, strategies that respond to counterparty behaviors, such as tit-for-tat, always outperform those that do not, such as always-cooperate, always-reneg, and random-choice strategies.
Your strategy is apparently always-cooperate. It's a loser. If you do not penalize bad behavior or unbalanced deals, they will become more prevalent in the environment.
> t isn't unprofessional to abruptly walk out on the job if giving notice was never in the requirements.
Depends on circumstances and the details of your profession. If you're just a badly-treated wage slave, then definitely: walk out as soon as you find something better.
But I'm an independent contractor/freelancer, and I'm currently working on a project that would probably take about a year. But my contract is always to the end of the quarter and gets extended by a quarter. I could probably refuse such a contract extension, and I considered it, because a previous client where I really, really enjoyed working, asked me if I was available. But I didn't because I felt it would be unprofessional to leave at this stage.
It seems to me that a project that should take a year should have contracts that last for the entire duration.
If we're talking about professionalism, at what point did you bring up to the client that their quarterly contracting strategy leaves them extremely vulnerable to losing critical personnel before the work gets finished? I think what happened there is that they leveraged their project management flexibility against your sense of integrity, and you lost.
They're big. The people I talk to don't control the policies regarding contracts.
In any case, I didn't lose anything. As long as I get paid for the hours I work, I'm happy. I'd be totally fine with the contract getting terminated tomorrow. I'm also fine with working here for another half year. But at more than a year, I think I'd get itchy.
California is an odd example of an at-will state, for various reasons.
There have been a lot of implied-in-fact exceptions to the at-will doctrine (see Pugh v. See’s Candies, Inc.
) essentially holding that your employment contract would not control if the employer gives you a different impression.
The general legal view is that california is not really an at-will state anymore, because of the routine exceptions that get made.
IE cases holding "evidence of a “long and distinguished career” supported finding of implied contract not to terminate without good cause", etc.
> and most people reading HN (in fact, most people working at startups in general) are likely to be employed at-will
I'm not so sure about that. While Silicon Valley particularly, and the US in general, has a disproportionate number of high tech startups, you also have some of the weakest workers rights in the world, and while I don't know the exact demographics of HN, I'm not so sure it is that focused around California.
Pretty much all of Europe, with a population of about 800 million, for example, have protections that are vastly stronger. A substantial majority of countries have 1-3 months notice periods that are hard or impossible to get around, in some cases with a legal right to actually continue to show up to work and carry out the contracted work during that period even if your employer would like to pay you to stay away.
The European Union is only hanging on by a thin fibre. These values are certainly admirable, but that doesn't make them scalable from a systems engineering perspective.
Like natural resources, it's called human resources for a reason.
IIRC, the author lives in NYC, so I assume he was working remotely. If that was the case, which states laws apply? What if one of the states is an at-will state and the other isn't?
If it's a small company in California they really don't want to take a bus to Texas to get into a legal fight with you.
This is one of those cases where you can't have both sides compromise. They want things jurisdicted (izzat a word?) in one state or the other. And the company is the one with the lawyers who have crafted things specifically for their home state.
You should give them this, perhaps in exchange for something else.
I am currently awaiting a 60 day notice, as 80% of the company is being laid off. Our parent company recently laid off a number of folks who only got 30 as the company is eliminating a large portion of the company.
A place that I worked at two years ago laid off 2/3 of the company just 49 days after I'd joined. They weren't as brain dead as the federal legislature so they simply framed it as temporary for five months which falls under the requirements of "WARN."
Speak for yourself; I own my cable modem outright. But I do understand (and I don't care) that the ISP can essentially reprogram that device, since that's how the technology is intended to work. That device is just feeding into a router I control, anyway.
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.
You're accusing me of not reading something carefully when you're not considering the context of the quote to which I was responding -- which was specifically talking about the previous poster's advice to PROGRAMMERS?
and are widely considered unenforcable
Unless I was planning to really go after my ex-employer as some kind of vendetta, I wouldn't worry about a Non-disparagement agreement's enforceability. They're no more of a worry than non-compete agreements.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Someone who signs because they need two weeks' pay isn't going to be able to afford both sides of a legal fight. You still have to pay your lawyer while you're waiting for the other side to stump up the money.
Exactly, nothing will happen. At some point you see the big picture; the company is struggling for money. They already know your financial situation (unemployed) so the will not waste resources going after your assets. Like someone else said too, the burden is on them to show something is disparaging. Why not take it to court and drain what little resources they have left. You can drag it out as long as you want, not like you have a job! What a silly clause, I don't ever see it affecting you just from a blog posting. Disclaimer; not a lawyer (thank god because lawyers come up with this bs)
.. and no shot of a healthy Safe Harbor gift a few months down. I got, on top of three months' severance a surprise $2K Safe Harbor gift, only having worked for the company for just over a year. And they were effective references, including the man who sacked me.
Leaving gracefully (and briskly without making a scene) can indeed be helpful, though perhaps not in the Times author's circumstances.
Courts decide legal issues. If you give your word that you'll refrain from doing something, and then you do it, then you've broken your word, regardless of legalities.
If I signed the contract, I said I would refrain of disparagement. If I was subsequently critical of the firm and the company thought it rose to disparagement, it becomes a legal issue.
The same thing happened when they tried to tack on fee when leasing my car. Also, if they offer to split the cost of an add-on with you, they can eat the whole cost most of the time.
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.
You have to be careful about this, too. I've seen one of these from a California employer that uses a Florida "choice of law" clause, too. I'm no lawyer, but I suspect that radically changes the calculus.
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.
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.
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.
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.
And frequently the # is negotiable, though it can require a lawyer to do the negotiating. Some work on contingency. (I've never been through the process, but have seen enough layoffs to have watched people negotiate their #s)
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.
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?
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
>> 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?
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...
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.
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.
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.
> 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.
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.
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.
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.
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.
At any point in history, if you wrote a "Letter to the editor" disparaging your company or boss, you'd most likely get fired. How is posting on a public web service different?
Because now you risk your employment by writing a letter that isn't about your employer at all. Anything your (prospective) employer doesn't like is verboten. So people deliberately circumscribe their speech.
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[ 2198 ms ] story [ 743 ms ] threadIt sounds typical of a culture driven by lawyers, rather than leaders.
If a good person leaves your company, it is because of one or more of the following:
1. You can't (or won't) pay them as much as someone else.
2. They aren't happy in the culture of your company.
3. They aren't happy with the type of work they are doing.
4. They don't see a bright future with your company - either for themselves, or for the company, or both.
5. They don't trust the company (or, possibly, the people they work with).
6. It isn't one item, or one incident, but over their time with the company, many little things that eroded their desire to work there. A person leaving today might have become fed up with the company two years ago when some botched project burned them or a manager handled something completely inappropriately. People don't usually just quit on the spot.
7. They want to work for themselves. Which means, they don't want to work for you. It really isn't you, it's them. (Wish them good luck and be sincere)
8. They can get a better deal (non-monetary) somewhere else and it outweighs the job. For young people, often the job is part of their identity. Once people get married and have kids (or just get a little older), they realize that working for someone else is not much of a reward. They may want a more flexible schedule, may want to just physically be closer to their home, any number of things that you may not be able to control.
9. You see them as a replaceable part and they know it. (Surprise!)
I mean you have a list of 9 reasons off the top of your head and it's just the tip of the iceberg.
IMHO, this information should be gathered well before exit, e.g. through regular 1-on-1's, but that's another discussion.
Close relative has received a terminal diagnosis
Believed their horrorscope
Got pregnant
Saved enough money to retire to Thailand
Spouse has had an affair with a co-worker (Trust aside this is still a good reason)
> They can get a better deal (non-monetary) elsewhere
Just won the lottery, close relative received terminal diagnosis, got pregnant, believed their horoscope, saved enough to retire - these are all cases where someone believes they can get more value for themselves by leaving their job.
Spouse has had an affair with a co-worker probably goes under "not happy with the culture"...
People who leave usually negociate or talk up before they leave. If you need the exit interview, then your management is seriously unable to hear. In which case the exit interview won't be acted upon anyway.
Exit interviews are the same. But unlike the stuff with a parent, it doesn't have the social-bond-building value of gossip.
With an exit interview, in the best case you learn nothing and know it; and in the worst case you learn nothing but mistakenly think you learned something. Not bothering with an exit interview helps you avoid that mistake, and saves you time as well.
One of my life goals is to always answer this question honestly.
Don't want to know what I think? Don't ask me.
The kind of people I want to spend my time around are those who prefer honest questions and honest answers, as opposed to those simply soliciting me for a bit of verbal fellatio.
Is that clear enough for you?
Maybe if things were sour it would have been different, but in this case I thought it was productive and was glad to help.
Of the companies I've worked for that hold exit interviews, and I've had conversations with ex-coworkers about what they said at the exit interview, it would appear that it doesn't make any difference anyway. So why open yourself up to any liability, or help relieve your ex-employer of any liability? Don't waste your time, or even their time for that matter.
There's also the fact that I find most interviews incredibly dehumanising experiences. Someone sits down and reads some set questions at you... bleh. Does anyone enjoy that? You want to know what I think, try having a conversation. If the emotional and intellectual investment on your side is you deigned to read me a list? Just... stuff that for a game of soldiers. I'm not going to put up some of my feelings and concerns in response to a list-reading machine.
Ultimately, if I've got a good relationship with my manager, she or he will know why I'm leaving without needing to sit down and treat me like some stranger who they can interrogate. If we don't have a good relationship, then under those conditions all they've really done is pay my wage in return for code, and when they stopped doing so they lost the right to my time and effort in any form.
Steer well well clear of them too! http://www.asktheheadhunter.com/haexit.htm
I've gotten some real painful, but incredibly meaningful, feedback from these interviews.
Why is this different than getting paid to do your job or meet a contract in other respects?
If an employer isn't required to do the same in California then there's not much to complain about.
Is this the case?
([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)
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.
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.
So unless you want to cherry pick extremely unlikely situations, this separation agreement clause is a no-op and probably worth signing.
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.
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.
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.
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.
And well, not everyone on HN (or Earth) is a fabulous developer, more's the pity :D Plenty of IT positions are cog-like, in the eyes of management and leadership, and people have to fight to get entry-level helpdesk type jobs around here.
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.
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.
In what country are you working?
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.
I can't imagine a company offering severance nowadays without including this. 2 weeks may be negotiable, but this won't be.
The First Amendment prevents this policy from being a law.
California, typically one of the hardest on employers, appears to have explicit protection for bad references made based on evidence and without malice. http://www.nolo.com/legal-encyclopedia/california-reference-...
New York's another high-regulation state, and while there's no explicit protection against defamation lawsuits, it's certainly not illegal to invite one via a shitty reference. http://www.nolo.com/legal-encyclopedia/reference-laws-new-yo...
I can't imagine a "no references" law would survive First Amendment muster in the US, regardless of attempted state legislation.
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.
The only right answer is no.
I'm also curious: did you negotiate this after they offered you a job? It seems frustrating to get the job first and then turn it down because it never met your requirements? Is it reasonable to ask a potential employer about their own-time policy during the interview phase?
When Marissa Meyer was hired by Yahoo, I found it interesting that her employment contract included some pretty familiar language:
https://www.sec.gov/Archives/edgar/data/1011006/000119312512...
Yeah, some good books, but pity about the person.
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.
http://ea-spouse.livejournal.com/
http://www.forbes.com/sites/insertcoin/2013/04/09/ea-voted-w...
A personal attack? Can we save the ad hominems for somewhere else? I fail to see how being an informed consumer is a problem. I care how/where my dollars are spent.
If you read the post you linked to, it quite reasonably says that EA is not the worst employer to work for. It's just that the Internet crowd thinks that it is. And what GP said was that this crowd comprises of people like yourself, which again is reasonable observation, not an attack.
My point is that, given that so many people love to hate EA (for better or worse, and regardless of whether their reasons make sense or not), it's really no surprise that EA is continually "awarded" such "honors".
Maybe you, knappe, have other (better) reasons to hate EA than those that relate to some ten-year-old drama that (probably) didn't personally affect you. Maybe you don't. But there is an Internet full of people who will probably never stop hating EA, no matter what.
This isn't to say that enormous, profit-hungry companies will never tend to act like tsunamis, but I don't know that your comparison is generally valid.
It is perfectly possible to see a company change every person in it and still have exactly the same behaviors, especially the pathological ones. I understand that from the employee's perspective, managers and execs seem to have near-infinite power. But from the perspective of any one of those people, they are vastly outnumbered; trying to change organizational culture is at best incredibly difficult.
Waves tend to hold their shapes. Culture is a wave through individual humans. Or, perhaps more accurately, a standing wave through which humans pass.
"So you intend to violate the Working Time Directive? Because if you don't, I will have lots of spare time outside of my contracted hours".
Of course if they'd given me that line, I'd told them that if so they'd need to at least triple whatever offer I might have previously considered.
For reference, CA Code 2870: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&gr...
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.
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.
Then your pattern matcher is giving you a false hit.
Your statement is about a government imposing unreasonable searches and seizure of you and your personal effects for the illusion of societal security.
The subject under discussion is about exchanging value for value in a voluntary transaction with you and a non-monopolistic employer.
[edit: added "voluntary"]
What's wrong?
What's disparaging?
If you've done nothing wrong, you have no reason to fear being searched for something wrong.
If you've nothing disparaging to say, you have no reason not to agree to a non-disparagement clause.
I don't see how unreasonable search and seizure or whether the employer is monopolistic or not even enter into this.
Maybe it comes out that your ex-employer was engaged in fraud. When you hear the news on social media you say "wow, Joe in accounting always did strike me as funny." You didn't mean it as disparaging. But the company does.
The "if you have nothing disparaging to say, don't worry about it" is a question of making a choice. If you choose to be able to disparage your employer in the future, don't take the severance. It would be your choice. If you choose to be careful of what you say, then take the money.
Monopoly affects whether or not you have choices in a society. The government is a monopoly, a monopoly that has the right to physically force you into compliance. Because of that simple fact, everything the government does or is allowed to do requires much greater scrutiny.
Your former employer (and anyone else you have done significant business with) can always find some flimsy basis for a lawsuit that will cost you several dozens of sleepless nights and $10k-$20k in lawyers fees, before it is thrown out by the judge.
What is stopping the other guy is they are not pissed off enough to throw $50k-$100k in the toilet for the lawyers fees and distraction to punish you unjustly.
Not signing does not actually protect you from baseless suits, if you run your mouth.
I think this actually cuts both ways, since companies usually have deep pockets and are responsible to investors. This is the only reason companies offer severance in the first place -- it's cheaper than dealing with the lawsuits.
Listen to this: http://www.econtalk.org/archives/2013/06/kling_on_the_th.htm...
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?
So exactly what "consideration" are you talking about?
On the contrary, I assert that severance pay is normal with or without the gag-clause. So the employer has put the "value" of signing agreement at zero.
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.
That would be tantamount to signing a release to play in a softball league and then one of the other players attacks you with a bat. So, you can't get your hospital bills covered, now?
If you sign the agreement and then renege, it's not like they can sue you for a million dollars in damages if your "disparaging" remarks are true.
They can sue you for slander/libel with or without you having entered into the severance agreement. If we're talking about getting sued for entering and then breaking the agreement, we're probably not talking about "millions of dollars" but rather whatever the contract specifies the penalty for breaking the contract would be (and this is still up to a court to decide what's actually enforceable).
What it covers is what you say about the company in the context (which can be broadly defined) of your being an ex-employee. If you say, "I worked at Time Warner Cable and it was run by idiots", that violates nondisparagement, because you're saying it as an insider. If you criticize the product not under your real name, or in private while not representing yourself as an ex-employee, you're probably fine.
Now, had it been a salaried position, I would have been far more concerned.
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.
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.)
[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
Most offers I see are clear that the letter is not a contract, and no contract can even exist without direct and explicit intervention by the CEO. And that seems to be a left-handed way of saying that if you do try to get an actual contract, you will not be successful, and the offer of employment will be withdrawn. I would very much like to see more at-will workers do same-day resignations when they change jobs, possibly even writing their own severance agreements.
It isn't unprofessional to abruptly walk out on the job if giving notice was never in the requirements. And most of the time, all that you get for the courtesy of making it easier for the employer to replace you is a payout for your accumulated vacation time, if anything.
If such practices are widespread in a particular industry than that industry in practice doesn't provide severance. In those circumstances, it makes sense to withdraw the corresponding practice of giving notice. Or perhaps instead substituting a practice of conditional notice.
Given the behavior of my current company towards all of its employees, I am looking to go elsewhere, and when I do, I won't worry overly much about burning those bridges behind me. The at-will sword is two-edged, so let the other guy feel the backswing occasionally.
I disagree. One of the things that distinguishes professional behavior for me is having professional standards. That is, no matter what your clients or employers do, there are certain ways you plan to behave. For me that would definitely include a good handover.
Of course, my professional standards also include refusing to build things that are obviously dumb, dangerous, or destructive. But a disturbing number of developers feel that they should just do whatever their bosses tell them, no matter the disaster that they set in motion. So one could argue that a lot of IT-related jobs are more trades than professions, in which case a "take this job and shove it" exit could be more acceptable. Not because it isn't unprofessional behavior, but because professional behavior isn't expected.
We have no union or professional association to protect our interests in my labor category. We have only the willingness to be faithful and courteous to those who treat us well, and to be stubborn and vindictive to those who would abuse our good faith. Bite the hand that beats you.
I think that professionals have to be careful in who they choose to work for, but once they start, they should act professionally. That includes leaving professionally.
In game theory simulations, strategies that respond to counterparty behaviors, such as tit-for-tat, always outperform those that do not, such as always-cooperate, always-reneg, and random-choice strategies.
Your strategy is apparently always-cooperate. It's a loser. If you do not penalize bad behavior or unbalanced deals, they will become more prevalent in the environment.
I don't think "unprofessional" means what you think it means. It is not, for instance, a synonym for "illegal."
Depends on circumstances and the details of your profession. If you're just a badly-treated wage slave, then definitely: walk out as soon as you find something better.
But I'm an independent contractor/freelancer, and I'm currently working on a project that would probably take about a year. But my contract is always to the end of the quarter and gets extended by a quarter. I could probably refuse such a contract extension, and I considered it, because a previous client where I really, really enjoyed working, asked me if I was available. But I didn't because I felt it would be unprofessional to leave at this stage.
If we're talking about professionalism, at what point did you bring up to the client that their quarterly contracting strategy leaves them extremely vulnerable to losing critical personnel before the work gets finished? I think what happened there is that they leveraged their project management flexibility against your sense of integrity, and you lost.
In any case, I didn't lose anything. As long as I get paid for the hours I work, I'm happy. I'd be totally fine with the contract getting terminated tomorrow. I'm also fine with working here for another half year. But at more than a year, I think I'd get itchy.
California is an odd example of an at-will state, for various reasons.
There have been a lot of implied-in-fact exceptions to the at-will doctrine (see Pugh v. See’s Candies, Inc. ) essentially holding that your employment contract would not control if the employer gives you a different impression.
The general legal view is that california is not really an at-will state anymore, because of the routine exceptions that get made.
IE cases holding "evidence of a “long and distinguished career” supported finding of implied contract not to terminate without good cause", etc.
See http://ainleylaw.com/2012/10/25/avoiding-the-at-will-bar/ for a random list of cases and holdings.
Suffice to say, i would not hold up california as a typical example of anything employment law related :)
I'm not so sure about that. While Silicon Valley particularly, and the US in general, has a disproportionate number of high tech startups, you also have some of the weakest workers rights in the world, and while I don't know the exact demographics of HN, I'm not so sure it is that focused around California.
Pretty much all of Europe, with a population of about 800 million, for example, have protections that are vastly stronger. A substantial majority of countries have 1-3 months notice periods that are hard or impossible to get around, in some cases with a legal right to actually continue to show up to work and carry out the contracted work during that period even if your employer would like to pay you to stay away.
Like natural resources, it's called human resources for a reason.
This is one of those cases where you can't have both sides compromise. They want things jurisdicted (izzat a word?) in one state or the other. And the company is the one with the lawyers who have crafted things specifically for their home state.
You should give them this, perhaps in exchange for something else.
http://humanresources.about.com/od/glossaryw/qt/WARN_Act.htm
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.
http://www.southparkstudios.com/full-episodes/s15e01-humance...
I had a friend who was a contract lawyer, and pointed out several clauses in my wireless contract and my internet contract. It was pretty eye opening.
Needless to say, you'd be surprised what you agree to when you sign contracts:
"Please be aware that we may change your wireless device's software, applications or programming remotely, without notice."
Which mean they update your modem (which is not yours btw, it's a part of your ISP infrastructure) for you, not that ominous IMO.
You're accusing me of not reading something carefully when you're not considering the context of the quote to which I was responding -- which was specifically talking about the previous poster's advice to PROGRAMMERS?
and are widely considered unenforcable
Unless I was planning to really go after my ex-employer as some kind of vendetta, I wouldn't worry about a Non-disparagement agreement's enforceability. They're no more of a worry than non-compete agreements.
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.
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.
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.
Duress would apply if someone is forcing you to sign.
(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...
"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.
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.
Over zealous/incompetent HR is probably the correct answer.
Seriously if you where a cop questioning some one and they blurt out I want to do a deal at the start of the interview what woudl you think
Normally in NCIS when the person getting interviewed by Jethro asks for a deal - they are the perp.
Then you've broken your word.
Leaving gracefully (and briskly without making a scene) can indeed be helpful, though perhaps not in the Times author's circumstances.
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.
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.
Or if it's true.
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!
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.
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.
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.
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.
I'm happy to say that time is over and I've gone on a disclosure, defamation, competition, and recruiting spree.
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.
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.
>> 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?
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...
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.
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.
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.
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.