[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.

[margalabargala]

> 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.

Ah, the "I'm right, it's the world that's wrong!" argument.

> 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.

There's actually some pretty strict laws surrounding donations and gifts to prevent exactly this. You haven't found some legal loophole, you've just reinvented tax evasion and fraud.

You're at least consistent in the amount you know about sales law and severance pay.

[alterom]

>Ah, the "I'm right, it's the world that's wrong!" argument.

Not the world. A particular small component of the US legislation.

It's amusing that you don't understand the difference between the two.

>You haven't found some legal loophole, you've just reinvented tax evasion and fraud.

I didn't invent anything. I'm telling you of a real-world experience I've had in Zide Door Church in Oakland, CA[1], at one of the few places in the US where you can get psychedelic mushrooms legally.

That place is still there, and has been for years; it is operating legally, with a permit.

>You're at least consistent in the amount you know about sales law and severance pay.

How ironic. Both the sale of psychedelic mushrooms (within the legal framework of religious rights) and the "non disparagement" extortion (within the legal framework of contact law) are, very clearly, legal, on the account of both taking place in the open and persisting through legal challenges.

Yet you don't see them the same way, and call the first practice "tax evasion and fraud".

What gives? By your logic, you'd be illiterate to say so, given how it's been established to be legal.

Talk about consistency, huh.

[1] https://www.npr.org/2026/02/19/nx-s1-5718389/psychedelic-rel...