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
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.
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.
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?
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.
> 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).
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".
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.
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.
Happy to. A service is any activity that one party performs (or refrains from performing) in exchange for consideration from another. That's basic contract law. Every lawyer learns this in 1L.
> it makes blackmail a "service"
No, because blackmail involves a threat to do something you have no right to do, or a threat to reveal information as leverage. A company offering severance isn't threatening you with anything. They're offering you money you aren't otherwise entitled to. You're free to walk away with nothing and disparage to your heart's content.
> you're conflating legal and moral arguments
I'd say that's been your move this entire thread. You keep asserting that severance is compensation for past work as though it's a legal fact, when legally it isn't. It's a voluntary offer. Then when the legal framework doesn't support you, you pivot to "well it's a basic expectation," which is a moral argument. I'm fine having either conversation, but pick one.
> It's not restricting factual statements
Agreed that overbroad non-disparagement clauses are bad. But "this clause is sometimes too broad" and "this clause is inherently coercive" are very different claims, and you've been arguing the latter.
By that definition, blackmail (or extortion) is a service, performed by the party doing the blackmailing.
It refrains from doing some activity (like beating you up, or reporting you to police) in exchange for consideration from you.
>No, because blackmail involves a threat to do something you have no right to do
I have the right to report you to the police for a crime.
What I don't have is the right to perform the service of "refraining from performing" this act in exchange for consideration from you.
That's extortion, if I offer this "service" to you.
Nor do you have the right to pay me to perform that "service". That's obstruction of justice (or you figure out what crime it is to pay someone to keep their mouth shut after they witness a murder).
The point of this exercise is that saying "it's a service" doesn't establish either morality or legality, as both extortion and bribery fit that definition (extorter is performing the service of not fulfilling the threat, briber is buying a service of adverse actions not taken against them).
That's to say, this definition of "service" is quite contorted.
No sane person sees extortion as a bonafide service perfomed by the extorter. It's a perversion of the English language to consider it as such.
That's in the same vein as when mafia collects a "protection" fee, we understand that it's not the same thing as a business purchasing services of a security company.
Mafia doing the protection racket is not performing a "service" for the business it's racketeering in the human, English language sense of the word "service".
The contact law language defines this word differently for formal convenience, just in the same way that normal, open, closed, and so on mean something very specific in mathematics that has nothing to do with what these words mean out there in the real world.
We are in the real world, talking about the real world, where keeping your mouth shut isn't a service that someone performs, even though it may — under some limited circumstances — be considered one under contract law.
My argument is that the extent of these limits shouldn't include the context of a termination agreement, just like it currently doesn't include the context of reporting a crime.
I hope I've made myself clear enough here for the legally minded.
>You keep asserting that severance is compensation for past work as though it's a legal fact, when legally it isn't.
At no point in this conversation did I assert that it's a legal fact. The article we're discussing establishes the opposite.
My entire point is the mismatch between the legislation and reality.
Severance is compensation for being fired at will after working as an employee for some length of time.
That's all it is.
In France, for example, it's legally mandated for certain types of contracts.
In the US, it isn't.
The laws don't determine the meaning of a concept.
You wouldn't be doing hard drugs if you smoked weed two years ago, even though then it was a Schedule I drug in the US, along with heroin.
That legal clarification was a mismatch between reality and the legal definition of a "hard drug".
Marijuana isn't, and has never been a substance comparable to heroin, yet legally they were in the same class.
Tacking a non-disparagement clause into a termination agreement is not, and has never been comparable to advance payment for future work (or service), yet legally they're in the same class today.
It's particularly Orwellian to insist that the termination agreement marking the END of one's SERVICE to a company, is, in fact, rightfully a contract that enters someone into a service to the same entity, in perpetuity.
War is peace, termination of service is perpetual service. Utterly brilliant.
Please do yourself a favor and read Orwell's essay on the English language[1] to understand what I'm referring to here (even if you already read his other books).
> "this clause is sometimes too broad" and "this clause is inherently coercive" are very different claims, and you've been arguing the latter.
That's correct.
The employee doesn't get to determine any of the terms of the agreement, nor do they get any heads-up (like they would in other countries, where termination requires an advance notice under most circumstances).
A less coercive approach would be a termination agreement that contains no "non-disparagement" clauses, and a separate non-disparagement "contract" that the employee would be able to accept or reject — neither covered by an NDA.
That would separate the non disparagement shenanigans from the concept of severance (we pay you for letting you go and skip the hassle of going to court for that), and would help establish a fair market value for each of these components independently.
[1] https://www.orwellfoundation.com/the-orwell-foundation/orwel...
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.
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).
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.
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.
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.
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.
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.
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.
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.
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...
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".
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?
Well, some folks[1] here opine that "this is a feature, not a bug".
That's why, apparently.
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.
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.
FWIW I agree about not enforcing non disparagement clauses but legally that not the world we live in.
And we are arguing that private contracts like this should not be enforceable.
> we have decided
I have not been consulted on this matter.
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.
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.
That's not how it works at most companies.
Governments could just not help them do that.
And NDAs and similar, with their entire purpose being restricting speech, should also be restricted pretty strongly.
Given that this runs tangential with whistleblowing and free speech, this is exactly where I want a government to draw a line.
If it's about whistleblowing and doing the right thing, why not just refuse the money?
Disclosing illegal activities cannot be silenced by these agreements.
In such a world it would only add to penalties for proven libel.
It’s a pretty simple concept: if the truth hurts, you’ve got no one but yourself to blame.
NDAs theoretically should never be able to paper over illegal actions. In a similar vein, non disparagement clauses should not be able to paper over the publication of legitimate insider experience of terrible — even if legal — behavior.
How so? The goal of these companies is generally to exercise the maximum possible control over what employees do and say.
Everyone is aware of that.
> I don't really want some arbitrary govt limit restricting what private parties can do with each other.
Great! Then you surely don't want the government to censor this author if she were to criticize Meta, a.k.a., "enforcing the non-disparagement agreement".
If I'm wrong, and you do think it should be enforced, then my alternative response is this: You are confused. It is the enforcement of the non-disaparagement agreement that is the government limitation and restriction of private parties.
I'm a staunch defender of civil liberties, so I think the government should stay out this affair by declaring the agreement to be unenforceable.
Arguably, its more like non-compete agreements but with the added fact that state enforcement of the agreements is in tension with freedom of speech.
But, you know, lots of jurisdictions sharply restrict enforceability of non-competes, too.
Read about record contracts. Prince spoke extensively about his restrictive contracts.
The only sensible way to approach libertarianism is to qualitatively evaluate individual liberty. And being prohibited from speaking 8 years after the fact, especially when there is a compelling public interest, is in no way equitable. If they want her continued silence, they should have to buy that on the order of year to year.
If you're making an argument that the right to contract should be unlimited between individuals (and perhaps unlimited between legal entities), but should be limited when made between individuals and artificial legal entities, that would be an interesting framing to explore. But afaik it's not really a popular one.
(although I don't know that such a framework would actually invalidate what I said, especially for autocratic totalitarian states - each citizen of North Korea could just as easily be said to have a contract with Kim Jong Un himself)
Plenty of contracts benefit both parties but are bad for society as a whole, and if the government pre-signals which sorts of those contracts it will refuse to enforce, this is good for society.
This doesn’t limit the Feds. Also, a state can prohibit non-compete. Etc. Basically, the freedom to enter into a contract is not one of the four corndogs of freedom.
Then it's a good thing this doesn't do that. Instead, all it would do is take away enforcement of non-disparagement clauses. That gives people more freedom. Because, contract law is just law that compels people to keep promises they make.
The reason we have contract law is commitment. This is sometimes necessary to keep things flowing smoothly, but it this principle can very quickly lead to extremely intrusive government. As a consequence, we have to keep it carefully trimmed.
I don't see how it's principled to legally swear to not do something, then turn around and do it anyways. She's an adult, she has agency, and she chose to enter that contract.
It's also not like we're talking about a legal whistleblower here. That act DOES (and should) have a lot of legal protections. This is someone writing a book that they personally profit from.
Corporations will violate contracts all the time as a cost of business if the cost of the violation is less than the benefit gained.
As a society (more so here in the UK than in the US, I'll grant) we have laws governing what one party may demand of the other. They don't prevent a genuine meeting of the minds, because enforcement of a contract will only be an issue if at least one party doesn't follow through. But they do limit the ability of the company to impose sanctions beyond a point.
One limitation in the UK is that penalty clauses that are "private fines", like this one, must be based on the actual damage caused.
In this case, as in the non-compete case, I would say that if a company wants to continue to influence what someone does, they should continue to pay them.
One of the most pressing problems of our time is that these large corporations, on balance, have too much power compared to the electorate.
> We are literally discussing that this act could easily be stopped by legislation. Doesn’t that imply they have less power than the electorate?
Not when they have full time people dedicated to lobbying the legislation. That's the issue on why things move so slow or halt when it comes to really voting on such policy.