6 ms·

You don't have to agree to a disparagement clause... She accepted a lot of money to agree to it.

alterom 6mo ago
Yeah, clearly the employee and the company have the same leverage in negotiation here. 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
- margalabargala 6mo ago
  Different entities having different amounts of leverage in a negotiation is neither unusual nor inherently immoral. 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.
  - alterom 6mo ago
    >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 6mo ago
      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?
      - alterom 6mo ago
        >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 6mo ago
        > 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 6mo ago
        >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 6mo ago
        > 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.
      - carefree-bob 6mo ago
        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 6mo ago
        >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).
      - Samson_Corwell 5mo ago
        > 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 5mo ago
        Yes, helping enforce valid legal contracts is one of the functions of government. This is a feature, not a bug.
- charcircuit 6mo ago
  She can just reject the offer. Nothing can compel you to sign a contract you don't want to.
  - HarHarVeryFunny 6mo ago
    No, but most people want to pay their bills, so they "want" to sign the severance agreement.
  - Samson_Corwell 5mo ago
    > She can just reject the offer. Nothing can compel you to sign a contract you don't want to. 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?
    - alterom 5mo ago
      >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. [1] https://news.ycombinator.com/item?id=47679530 https://news.ycombinator.com/item?id=47679530
- prepend 6mo ago
  She was privileged to even get a severance. Most people just get fired.
  - alterom 6mo ago
    That's not privilege. 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.
- zeroonetwothree 6mo ago
  The company offers you money in exchange for signing certain agreements. You are free to decline. There is no obligation on either side. If non disparagement clauses were illegal then perhaps the severance amounts would be smaller since there’s now much less value to the company.
  - alterom 6mo ago
    >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.
Hizonner 6mo ago
That's nice, but the rest of us didn't accept anything to agree to provide a legal system that would enforce it... and there's no reason we should.
- zeroonetwothree 6mo ago
  We have a system of laws that decide which private contracts are enforceable and which are not. So we can try to change the law but as it stands we have decided that this one is enforceable. FWIW I agree about not enforcing non disparagement clauses but legally that not the world we live in.
  - johnnyanmac 6mo ago
    "we" is a strong word here. More like some people 50-80 years ago decided to at worst rule against the worker's best interest, and at best chose to ignore it and pretend things would work out with a "gentlemans' agreement".
  - krisoft 6mo ago
    > We have a system of laws that decide which private contracts are enforceable and which are not. And we are arguing that private contracts like this should not be enforceable. > we have decided I have not been consulted on this matter.
    - killingtime74 6mo ago
      Unless you're on the supreme court that will continue to be the case
      - krisoft 6mo ago
        Sounds like you agree with me that “we” haven’t decided.
        killingtime74 6mo ago
HarHarVeryFunny 6mo ago
You make it sound like an a la carte option "I'll take the standard severance plus the non-disparagement bonus please!". That's not how it works at most companies.
- antonvs 6mo ago
  Contracts are negotiable at most companies once you get to a certain level. I negotiated my last contract, and I’m an IC, not an exec. In fact I made the non-disparaging clause mutual, among other things.

Yeah, clearly the employee and the company have the same leverage in negotiation here. 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

margalabargala 6mo ago
Different entities having different amounts of leverage in a negotiation is neither unusual nor inherently immoral. 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.
- alterom 6mo ago
  >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 6mo ago
    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?
    - alterom 6mo ago
      >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 6mo ago
        > 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 6mo ago
        >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 6mo ago
        > 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.
    - carefree-bob 6mo ago
      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 6mo ago
        >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).
    - Samson_Corwell 5mo ago
      > 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 5mo ago
        Yes, helping enforce valid legal contracts is one of the functions of government. This is a feature, not a bug.
charcircuit 6mo ago
She can just reject the offer. Nothing can compel you to sign a contract you don't want to.
- HarHarVeryFunny 6mo ago
  No, but most people want to pay their bills, so they "want" to sign the severance agreement.
- Samson_Corwell 5mo ago
  > She can just reject the offer. Nothing can compel you to sign a contract you don't want to. 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?
  - alterom 5mo ago
    >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. [1] https://news.ycombinator.com/item?id=47679530 https://news.ycombinator.com/item?id=47679530
prepend 6mo ago
She was privileged to even get a severance. Most people just get fired.
- alterom 6mo ago
  That's not privilege. 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.
zeroonetwothree 6mo ago
The company offers you money in exchange for signing certain agreements. You are free to decline. There is no obligation on either side. If non disparagement clauses were illegal then perhaps the severance amounts would be smaller since there’s now much less value to the company.
- alterom 6mo ago
  >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.

Hizonner 6mo ago

That's nice, but the rest of us didn't accept anything to agree to provide a legal system that would enforce it... and there's no reason we should.

zeroonetwothree 6mo ago
We have a system of laws that decide which private contracts are enforceable and which are not. So we can try to change the law but as it stands we have decided that this one is enforceable. FWIW I agree about not enforcing non disparagement clauses but legally that not the world we live in.
- johnnyanmac 6mo ago
  "we" is a strong word here. More like some people 50-80 years ago decided to at worst rule against the worker's best interest, and at best chose to ignore it and pretend things would work out with a "gentlemans' agreement".
- krisoft 6mo ago
  > We have a system of laws that decide which private contracts are enforceable and which are not. And we are arguing that private contracts like this should not be enforceable. > we have decided I have not been consulted on this matter.
  - killingtime74 6mo ago
    Unless you're on the supreme court that will continue to be the case
    - krisoft 6mo ago
      Sounds like you agree with me that “we” haven’t decided.
      - killingtime74 6mo ago

HarHarVeryFunny 6mo ago

You make it sound like an a la carte option "I'll take the standard severance plus the non-disparagement bonus please!". That's not how it works at most companies.

antonvs 6mo ago
Contracts are negotiable at most companies once you get to a certain level. I negotiated my last contract, and I’m an IC, not an exec. In fact I made the non-disparaging clause mutual, among other things.