[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]

>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).

[carefree-bob]

That's fine, but you understand that severance is completely optional. But paying someone for doing work is not optional, there are minimum wage laws. It may be a corporate policy to offer severance, but those policies are often changed and are not part of the employment contract people sign (or very rarely is this the case).

If severance was part of your compensation, it would be part of the contract you sign. Instead, it's something in addition to your contract.

So it's very hard to argue that severance is compensation for past work when the company can choose not to give any severance, or not give to someone who doesn't sign a contract.

Also, you only get severance after you sign the contract about non-disparagement, not before, so it's very much a consideration situation.

Basically the reality is that business offer severance as a type of bribe for people not to sue them or disparage them.

This is why the courts have rejected your line of reasoning.

[alterom]

>If severance was part of your compensation, it would be part of the contract you sign. Instead, it's something in addition to your contract.

What you are pointing out is a legal loophole.

In the same way I got legal psychedelic mushrooms after making a donation to the institution that distributed them as religious sacraments.

I didn't get a receipt, so it was not a "sale", legally speaking.

In normal human terms, I bought those mushrooms, and I earned my severance pay.

It's can be an unspecified part of the compensation package, but one that is absolutely counted on.

A company known for no severance for high level positions would struggle to hire people unless they offered something to compensate for it.

>So it's very hard to argue that severance is compensation for past work when the company can choose not to give any severance

Same applies to year-end bonuses, so I can't accept this part of the argument.

>Basically the reality is that business offer severance as a type of bribe for people not to sue them or disparage them

We wouldn't have this discussion if it were the case. Bribes aren't enforced in courts.

The legal thing to do is to do the opposite of what you are bribed to do.

The reality is that businesses figured out a way to withold compensation unless the employee agrees to a gag clause, by exploiting a legal loophole.

They'd put it in the employment contract if they could get away with that.

>This is why the courts have rejected your line of reasoning.

Again: we're in agreement regarding the current legal status of non-disparagement clauses.

The issue I have is people considering those as fair, seeing severance as a privilege, and seeing violation of the non-disparagement clauses a moral failure.

In particular, there are multiple comments putting the credibility of Sarah Wynn-Williams in question, as well as seeing the gag order as justified.

If we roll with the bribe analogy: doing the thing that you were bribed not to do is seen as a laudable thing to do.

But here, we see people siding with the entity that pays bribes.

That's before we even get to the discussion of how certain things should not be bought and sold at all, as a matter of principle.

We universally agree that one shouldn't be allowed to buy or sell people (including oneself) into slavery.

Disallowing purchase or sale of sex isn't seen as problematic by many people.

Non-compete clauses are illegal in California, which is equivalent to saying that the freedom of choice who to work for (i.e, the right to accept a job offer when you're unemployed) may not be sold. You can't sign it away in a contract (including a severance contract).

Going back to what you said: bribes are generally illegal, even though the actions that are bought with bribes are.

That's because when it comes to, say, government officials, we decided that their choices and decision-making power are not things that could be, in principle, bought or sold.

The same, I argue, should apply to the right to disparage (colloquially: talk shit about) anyone and anything, including one's former employer.

It shouldn't be a thing one can buy or sell.

Particularly in a country founded on freedom of speech being a moral value.

On that note, when the courts get involved in enforcing those "non-disparagement" clauses in the US, I consider it to be a 1st Amendment violation (the government punishing people for speech). There's no provision in the Amendment that excepts speech which someone was privately paid to not produce.

The laws establishing the legality of non-disparagement clauses quite literally abridge the from of speech.

I fully understand that, somehow, they are, as of today, considered constitutional.

But then, so was slavery.

[margalabargala]

It's not at all a legal grey area.

If it was, people fired or laid off and not offered severance would have standing to sue.

They don't.

Calling it a legal grey area is like calling vaccines a medical/scientific grey area. Or calling perpetual motion machines a physics grey area.

[alterom]

You could say the same thing about the right to abortion access in the US until Roe vs. Wade was overturned (or equivalently, before Roe vs. Wade).

Comparisons to physics are unwarranted.

Laws change, and they are interpreted when applied. Very few things are black-and-white to begin with, and legality of non-disparagement clauses is one of them.

[margalabargala]

Yes, we agree on how the legal system works. Should existing laws be reinterpreted or new laws passed such that severance is treated as compensation for work already performed, then the arguments you've been making will begin to hold merit.

Until then, statements building from "severance is compensation for past labor" are imagined theories about a hypothetical reality with different laws than the world we live in.

[alterom]

>Yes, we agree on how the legal system works

Indeed. It's also clear from the article.

Laws don't describe reality though. Severance is compensation for past labor in the real world, just not from a legal standpoint in the US.

In the same vein, I didn't purchase psychedelic mushrooms; I merely made a donation to the institution that subsequently dispensed them to me as a religious sacrament.

From a legal standpoint, it wasn't a sale.

From any other perspective grounded in reality, it was.

[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.

[margalabargala]

> Look, I'm not here to kink shame

> 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).

[alterom]

>And yet here you are shaming me for my kink of making compensation contingent on provided service...

The service to get a severance has been provided prior to termination.

You're aware that severance is commonly proportional to length of service, right?

Not length of expected lifetime after being fired.

Keeping one's mouth shut isn't a "service".

Neither is a non-compete clause, for that matter (which is illegal where I am), so better figure out how that is possible given that it perfectly fits your definition of "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.

Calling putting a signature on a piece of paper and staying silent "labor" wins the Orwellian dictionary redefinition of the day for me.

Didn't know I was doing labor by doing nothing at all.

Pray tell, where do I get to perform such hard labor and get paid handsomely for it?

Hope the answer isn't "some of the companies that I performed labor for in the past" (in a normal, human, dictionary sense of the word "labor"), because the payment that you get after performing labor - and only after doing so - is called "compensation".

[margalabargala]

> The service to get a severance has been provided prior to termination

And here is the root of your misunderstanding.

You seem to be under the impression that because some companies occasionally scale severance based on tenure, it's comp for work already performed. Severance is like tipping in that it's not required at all.

Keeping one's mouth shut is a service. They're paying for it. So would be not competing with the company, if it were legal to enforce. Not sure why you think otherwise, just your personal vibes I guess? Maybe look up what an economic "service" is.

Maybe you're confused because as you say, no one has ever offered you money to keep your mouth shut?

This service only gets paid for when the recipient has credible things to say.

Similarly, some people get paid tons of money to just say their opinion, and here you are doing that labor for free too. The people getting paid have valuable information to offer, which someone else either does or does not want shared.

[alterom]

>Severance is like tipping in that it's not required at all.

Great comparison. Tipping is also a form of compensation for work already performed.

It's not required in the legal sense indeed. It is, effectively, required in every other sense. It's a basic expectation of a reasonable customer.

Positions where tipping is expected (e.g. waiters) typically have lower wages; furthermore, in the US, the minimum wage for waiters is lower because of that.

Tips are compensation, as in: payment for work. It is the part of the compensation that you can refuse to pay and not have the cops called on you.

Severance is like that indeed, except you're asking the server to hereafter refer to you as "daddy".

>So would be not competing with the company, if it were legal to enforce.

See, you understand that some things (like "not competing") aren't considered "services" that you can sign a contract to "perform" in exchange for severance.

"Not disparaging", in my opinion, belongs in the same category for the same reasons.

>Maybe look up what an economic "service" is.

Please provide a definition according to which not disparaging constitutes a service.

I wonder what definition you're using, because it makes blackmail a "service" (you're paying me for not to beat you up, see).

>Maybe you're confused because as you say, no one has ever offered you money to keep your mouth shut?

I've signed NDAs and signed severances with "non-disparagement" clauses in the past, so I understand the concept full well.

But come on. You're conflating legal and moral arguments, as well as legality and reality.

>The people getting paid have valuable information to offer, which someone else either does or does not want shared.

This is not what non-disparagement is. It's not restricting factual statements.

[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".

[margalabargala]

Yes, helping enforce valid legal contracts is one of the functions of government. This is a feature, not a bug.