> 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.
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.
"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".
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.
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.
>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.
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.
>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.
Here are more considerations:
- No person who did no work for the company gets to sign a "non-disparagement" clause, or get a severance.
- The severance amount is very commonly proportional to the length of service.
Insofar as the words "compensation" and work have meaning, severance is very clearly compensation for past work.
Fulfilling a non-disparagement clause is what no sane person would call work, no matter how many Orwellian mental hoops are jumped through to label it as such.
>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.
Insofar as we're discussing the morality of these clauses, it's iron-clad enough.
>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.
The "pro-compensation" crowd argues that this indeed should happen, not that the clauses are currently universally recognized as illegal (the article we're discussing very clearly shows that it's not the case).
> Making a bonus contingent on engaging in your fetishes is definitely not OK
And yet here you are shaming me for my kink of making compensation contingent on provided service...
Severance is compensation given up front in exchange for the labor/service of signing and following through with the severance agreement.
It is not compensation for work that was performed. It is compensation for work that will be performed.
It is not something you are entitled to by virtue of having worked somewhere. The company is free to fire you with no severance whatsoever if they want (in the US).
> 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".
> 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?