[pwdisswordfishy]

It should not be legal to enforce full stop. If you don't want to be disparaged, make your conduct worthy of not being disparaged. When you're being lied about, sue for defamation; "non-disparagement clauses" are redundant at best, an attack on free speech at worst.

[mathgradthrow]

You don't have to agree to a disparagement clause... She accepted a lot of money to agree to it.

[Hizonner]

That's nice, but the rest of us didn't accept anything to agree to provide a legal system that would enforce it... and there's no reason we should.

[Samson_Corwell]

> That's nice, but the rest of us didn't accept anything to agree to provide a legal system that would enforce it... and there's no reason we should.

This is exactly the kind of response with the right amount of flippancy/belligerence that "they aren't/weren't forced to sign" deserves to be met with.

[zeroonetwothree]

We have a system of laws that decide which private contracts are enforceable and which are not. So we can try to change the law but as it stands we have decided that this one is enforceable.

FWIW I agree about not enforcing non disparagement clauses but legally that not the world we live in.

[krisoft]

> We have a system of laws that decide which private contracts are enforceable and which are not.

And we are arguing that private contracts like this should not be enforceable.

> we have decided

I have not been consulted on this matter.

[killingtime74]

Unless you're on the supreme court that will continue to be the case

[krisoft]

Sounds like you agree with me that “we” haven’t decided.

[mathgradthrow]

Did you not vote?

[johnnyanmac]

"we" is a strong word here. More like some people 50-80 years ago decided to at worst rule against the worker's best interest, and at best chose to ignore it and pretend things would work out with a "gentlemans' agreement".

[wavemode]

...Huh? You want to be personally consulted before any law comes into effect?

[antonvs]

That’d be direct democracy, which is not such a bad idea.

E.g. in Switzerland, citizens can propose constitutional changes, challenge parliamentary laws, and some decisions automatically go to vote.

Citizens of California can pass laws directly, amend the constitution, and recall elected officials.

Probably the biggest reason we don’t have more of that is that people in power typically see it as a threat.

[krisoft]

Why not. Doesn’t sound that crazy.

[HarHarVeryFunny]

You make it sound like an a la carte option "I'll take the standard severance plus the non-disparagement bonus please!".

That's not how it works at most companies.

[antonvs]

Contracts are negotiable at most companies once you get to a certain level. I negotiated my last contract, and I’m an IC, not an exec. In fact I made the non-disparaging clause mutual, among other things.

[alterom]

Yeah, clearly the employee and the company have the same leverage in negotiation here.

It's a free market! If she didn't like the offer, she could've just gotten herself fired from some other company instead. /s

[zeroonetwothree]

The company offers you money in exchange for signing certain agreements. You are free to decline. There is no obligation on either side.

If non disparagement clauses were illegal then perhaps the severance amounts would be smaller since there’s now much less value to the company.

[alterom]

>If non disparagement clauses were illegal then perhaps the severance amounts would be smaller since there’s now much less value to the company.

...and the salaries would be higher, and some people would be make different choices regarding whether they want to accept an offer or not.

They aren't illegal, but, like non-compete clauses, they should be.

[prepend]

She was privileged to even get a severance. Most people just get fired.

[alterom]

That's not privilege.

She earned it.

A company's reputation when it comes to severance is a part of compensation negotiations and decisions whether to accept the offer to work there.

She got a high level job where such a severance is expected. If it weren't, they'd struggle to find anyone to fill that job.

The severance wasn't contingent on her past. Anyone else holding that job would've gotten a difference.

A male probably would've gotten a larger one, for that matter.

[margalabargala]

Different entities having different amounts of leverage in a negotiation is neither unusual nor inherently immoral.

If someone gives you the option to accept $ to sign a contract agreeing not talk about something that is legal but morally bad, and you say yes, then talk about the thing, you will correctly be losing the lawsuit, no matter how bad the thing is.

[alterom]

>Different entities having different amounts of leverage in a negotiation is neither unusual nor inherently immoral.

Having a leverage to force an NDA is not immoral, but breaking the NDA (no matter how unfair the situation that led to it being signed was) is immoral.

Got it.

[margalabargala]

Sorry, what was forced about the NDA?

Did I miss the part where a gun was held to their head?

If I offer you money to eat a turd, is it your view that you are being forced to eat the turd?

[carefree-bob]

This goes to the issue of whether severance is compensation for past work or consideration for future work, which is a legal gray area.

The pro-compensation crowd assumes that because severance is taxed as compensation, that it is payment for past work, and therefore any non-disparagement clauses are illegal.

This is something I have seen just stated as if it was an iron-clad fact, rather than something that the courts don't actually uphold at present.

The pro-consideration crowd says that while severance is considered compensation after it is granted, the procedure of needing to sign a contract saying "you cannot disparage us if you want this payment" together with the fact that severance is optional and not mandated by law, means that it falls into the consideration category, and your end of the bargain is to not disparage the company if you want the severance, otherwise don't sign the contract and you wont get the severance.

That said, what is a more interesting take is whether states should make non-disparagement clauses illegal in the same way that many states have made NDA clauses illegal. That would basically force companies to not demand this in exchange for severance. This has the upside of being legally unambiguous but the downside of needing to actually fight for states to pass these laws, as opposed to just assuming that non-disparagement clauses are illegal under existing laws, which isn't an argument that will find much sympathy in the courts.

[alterom]

>If I offer you money to eat a turd, is it your view that you are being forced to eat the turd?

Look, I'm not here to kink shame, but that's not the right forum for that sort of fetish.

Anyway. You seem to have a trouble understanding the concept of severance.

Severance is just a form of compensation for work that was performed.

It is not given to someone who did not work for the company. It gets taxed as compensation. It is compensation.

There are limits to what an employer can demand of an employee for compensation.

There are limits to what employer can make the compensation contingent on.

Making a bonus contingent on engaging in your fetishes is definitely not OK.

Hope that's clear.

[Samson_Corwell]

> Sorry, what was forced about the NDA? > Did I miss the part where a gun was held to their head?

She was not forced to sign the NDA. That is correct. Take note, however, that she would still be forcibly silenced by the government if you want this contract upheld. And that will "hold a gun to their head".

[charcircuit]

She can just reject the offer. Nothing can compel you to sign a contract you don't want to.

[HarHarVeryFunny]

No, but most people want to pay their bills, so they "want" to sign the severance agreement.

[Samson_Corwell]

> She can just reject the offer. Nothing can compel you to sign a contract you don't want to.

Not an argument. Yes, she can reject the offer. The guy up top is saying that the non-disparagement clause shouldn't be enforced, a claim that you are just dodging.

After all, why should we be okay with government censoring people on behalf of businesses?

[alterom]

>After all, why should we be okay with government censoring people on behalf of businesses?

Well, some folks[1] here opine that "this is a feature, not a bug".

That's why, apparently.

[1] https://news.ycombinator.com/item?id=47679530

[SpicyLemonZest]

The reason they’re not redundant is that we, rightly, don’t allow people to sue for defamation for many kinds of unfair speech and even some kinds of untrue speech. It’s not defamatory for you to call me careless or mean or rude, even if I can produce ironclad proof that you know I’m careful and kind.