Comment by tptacek | Hacker News Reader

Comment by tptacek | Hacker News Reader

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In the medium term, it seems like there needs to be a federal mandatory public policy exemption to nondisparagement, rendering the agreements unenforceable in cases like these and sanctioning illegitimate attempts to enforce.

In the short term, it would be good if people could organize legal aid for people in our field working under nondisparagement clauses. Some of these clauses may be prima facie difficult to enforce due to language; others may leave room to report companies to legal authorities.

Finally, and I'm a broken record on this: if a significant fraction of engineers at any company organized themselves and demanded reasonable limitations on their nondisparagement clauses, for instance to protect whistleblowing, they would get it. What's a significant fraction? At many companies, it's probably less than 20%.

I hope a lot of tech industry employees are, as we speak, talking with their friendly peers at their companies and starting to think about how to reach out to labor lawyers to start this process. It's not that hard, and, for the time being, federal law protects you extensively in the process of organizing your workplace.

There might be unintended consequences to rendering these agreements unenforceable. Over the course of my career, I've seen plenty of cases where employees have been part of a layoff and I've had it happen to me a couple of times as well. In almost all of these situations, employees have been asked to sign one of these non-disparagement agreements. Rarely, if ever, has anyone intended to disparage the company. But in any contract, both sides are supposed to receive consideration, and the agreement is what the company wanted for piece of mind. What the employee got was money, often quite a bit of it. If these agreements are ruled unenforceable, I'd expect companies to dial back the amount of severance they offer since there's little other consideration they could ask from departing employees. For those of us that have little interest in engaging in a public war of words with a former employer (regardless of the company's behavior, it's rare that doing so will do anything other than hurt an employee's future job prospects), unenforceable non-disparagement agreements would only cost us money.

Where I think it would be reasonable to make changes is to carve out exceptions to these agreements that are always allowed. Sexual harassment, for example, shouldn't get to hide behind a signature that was made to receive severance. Likewise, it should always be allowed to report a crime to police, even if it means accusing a former employer. Making these carve-outs explicit might make these agreements more reasonable without limiting their attractiveness to companies offering severance.

you of course where paid for the "non-disparagement" aka compromise agreements ?

Otherwise id be thinking well if they want me to sign this they must have done something wrong in the redundancy process

needs to be a federal mandatory public policy exemption to nondisparagement

I could see agreements not to spout off opinions making sense, but having actual facts (or things you reasonably believe to be facts) ought to make it ok.

Rather like what the Internet tells me the difference between US and UK defamation laws is; if you have actual facts on your side you're ok, but if you're just expressing opinions then it depends (on where you are; or I'd like to think on what agreements you have).

Big difference between UK and US defamation law is that the burden of proof is reversed. In UK you have to prove that your defamatory statements were true but in US the defamed party has to prove they were false.

I'm not a lawyer, I'm not your lawyer. If you need legal advice or need to make a defamatory statement get real legal advice.

> if a significant fraction of engineers at any company organized themselves

Unfortunately, as soon as you use the o-word, you've lost probably 90% of your audience of self-sufficient bootstrappy meritocratic engineers, to whom the idea of collectively bargaining for anything with other employees is unacceptable. Unionization is such a bizarrely taboo topic among techies.

Seems like a good opportunity for someone to register disparage.org and start recording complaints against the uncomplainables.

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