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Comment by mathattack | Hacker News Reader

My 2 cents... The non-disparagement is a trade. You trade not saying anything bad about them publicly, and they agree not to say anything bad about you during a reference check. You get a positive (or perhaps generic "He worked here from X to Y, that's all we can say") reference, and they don't have to worry about a book coming out trashing them. The amount of cash is secondary. The real thing is, if you want to remain on good terms with them, you sign it. If not, you don't.

I can't imagine a company offering severance nowadays without including this. 2 weeks may be negotiable, but this won't be.

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The funny thing is the article is squarely aimed at the non-disparagement clause which to me is not very interesting. But the big deal is actually the "release of all claims" clause. Essentially they're trying to get a "get out of jail free" card for any unlawful actions they may have taken as part of your termination.

Even if they did nothing unlawful (ex: terminate everyone over 40 years old to bring in younger cheaper workers, terminate everyone of a particular race or other protected class, etc) terminating someone can often bring frivolous claims that can cost the company hundreds of thousands of dollars. Assuredly, their offer of two weeks severance is a "it's worth a shot" attempt to see who is dumb enough to take it.

Right. They need the signature to get free of any wrongful termination suits. Though, the non-disparagement clause pretty much ties in with that, I suppose.

And "release all claims" is precisely why I didn't sign for a paltry two weeks severance at one ex-employer. Don't speak ill of them? Fine, whatever, I'm content to never speak of you again, positive or negative. But let you off the hook for when it occurs to me weeks later that you have illegal hiring/firing patterns? Umm, no, not for a measly few grand. (And though a solid case could have been made for unlawful termination, I left it be because I was a month from quitting anyway.)

The mutual non-disparagement did not appear to be part of the original agreement, and was only mentioned as a possibility. Such agreements are usually asymmetric in who benefits and who bears the responsibilities, and the company dangles the severance pay to put itself in the superior position. I've never heard of a company offering any such thing, at least not as a standard part of a layoff offered to all affected employees.

Actually, legally, they cannot say anything more than "He worked here from X to Y, that's all we can say". You don't need any agreement from them.

Can you provide a source for this? I've never heard of this before and am curious what legal restriction you are referring to.

It's in a secret section of the constitution on employment law, that overrides the first amendment.

The first amendment (and all the rest of it) has nothing to do with non-governmental, private interactions.

Of course it does, when you're talking about the government regulating non-governmental, private speech, such as this mythical law against employers saying truthfully that you were fired for cause.

Fair point. I suppose I'm really not sure.

That's why companies are free to have this as a company policy.

The First Amendment prevents this policy from being a law.

That's not true. Many companies have this as a policy to avoid defamation lawsuits from former employees receiving what they consider a bad reference, but that's not because there's a law forbidding it.

IANAL, but I believe you are technically wrong that it's illegal. Saying more, has however, been used against companies in civil court, with damages awarded, even when the 'more' said was completely accurate.

This is simple misinformation. Most places will only say that much so as to limit unnecessary liability but, in most locales, an entity is not explicitly prohibited from providing additional information with respect to performance, etc.

Right. A typical stealth question that is perfectly allowed is the "would you hire this person again?" question. It says a lot with one yes/no answer.

Exactly. And can sometimes open up follow-ups with, "Can you tell me why not?"

What would be the purpose of reference checks then?

to verify that you actually worked there. they can also verify that what you put on your resume was your role. Eg I can't really get away with "CEO of Microsoft" from my time as a janitor there.

I should have stated that it depends on the state. Some states may not have these stipulations.

Care to point one out that does?

California, typically one of the hardest on employers, appears to have explicit protection for bad references made based on evidence and without malice. http://www.nolo.com/legal-encyclopedia/california-reference-...

New York's another high-regulation state, and while there's no explicit protection against defamation lawsuits, it's certainly not illegal to invite one via a shitty reference. http://www.nolo.com/legal-encyclopedia/reference-laws-new-yo...

I can't imagine a "no references" law would survive First Amendment muster in the US, regardless of attempted state legislation.

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