Requiring non disparagement is now in violation of labor law per the NLRB as of February 2023. If someone is putting one in front of you, contact the NLRB and an employment attorney to pursue recourse.
Companies can, and do, still seek non-disparagement clauses, just with carve outs that make it clear any protected rights per the NLRA or pursuant to other applicable state laws are carved out.
Companies perform illegal acts all the time, accountability is important. Can’t allow malicious people to get away with malicious behavior when mechanisms (regulatory and legal framework) to keep them in check exist.
We likely see what a just world looks like differently, and that’s fine. If someone has to pay you to be quiet when you leave, they have something material to hide worth pursing.
If you feel like sharing examples of the carve outs you mentioned, please do so I can communicate them to regulators for further triage and actioning.
I was making a descriptive statement, not a normative one. Regardless of your political views, I don’t think you are accurately describing the state of the law.
I also think you are frankly getting caught in black and white thinking. Yes, some companies abuse things like non-disparagement clauses, but they can also be used in a perfectly fine manner.
The carve outs typically say something like “you agree to not disparage the Company, provided nothing herein prohibits you from speaking out about workplace harassment, conduct prohibited by the National Labor Relations Act, or [other speech/laws that local law might say you can’t restrict].”
Terminations are emotionally fraught. People’s egos get hurt and it becomes contentious. A company might want to pay you 3 months severance to end on good terms and avoid a larger dispute, but have it be contingent on a release of claims and non disparagement clause. That does not mean it’s because they “have something to hide”.
For example, these clauses are often mutual. Does the terminated executive have something to hide?
I agree that coercively using NDAs and non-disparagement clauses to hide illegal conduct (harassment, labor law violations) is probably illegal and immoral.
But should OpenAI and Ilya be allowed to agree to a mutual non-disparagement, where both wish each other well, instead of having Sam post publicly about how Ilya is a backstabbing disloyal person that can’t be trusted, and Ilya posting about how Sam is a maniacal power hungry awful boss? These are personality conflicts and workplace disagreements, not illegal conduct.
My comments should not be interpreted as “black and white”, but as a total lack of trust in corporate actors, necessitating robust due diligence and potential government intervention to ensure any constraints imposed are entirely legal and proper. It’s possible the carve outs are legal, and there is no malfeasance. But there could be, and that’s where the work lies, because more often than not (and I believe the evidence around this to be robust), there is malfeasance and corporate actors are not acting in good faith.
My political views are, broadly speaking, “be a decent human, defend and empower other humans”. Understandably, what that means is potentially up for interpretation.
My character assessment of Altman was inaccurate, and my comments speak to a posture needed as a counterparty of his or an org he has a control of.