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Ask HN: Non-disparagement agreement that never expires

25 points by anonDisparage 8y ago

I have worked at a company for many years that is going through a merger. I have been asked to sign a new Employment Agreement that includes a strong Non-Disparagement clause. The language states that the clause applies "During the Employment Period and thereafter", which seems to read as "for the rest of your life" to me. When I brought my concerns to management, I was told this was common for the industry, and that they didn't understand why I was "asking for the right to disparage the company within a certain time frame" Is this normal, am I overreacting to this?

orangecat 8y ago
I was told this was common for the industry That is not at all common, at least not for ordinary employees.
- anonDisparage 8y ago
  To clarify, do you find that a non-disparagement clause is uncommon, or just the unlimited time frame?
  - taytus 8y ago
    I had to sign a non-disparagement agreement (also with unlimited time frame) when I left my latest company. I was lead developer there, not sure if the position matters. I signed because I really don't have anything negative to say about that company. Your situation maybe is different.
    - dTal 8y ago
      >I really don't have anything negative to say about that company Ah, but you would say that, wouldn't you?
    - tripletao 8y ago
      I hope this was in exchange for severance pay, or some other benefit? If not, then the best option is usually to take the contract, promise to review it carefully, and do nothing.
      - taytus 8y ago
        Yes, it was in exchange for severance pay. Thank you so much for your advice.
staticautomatic 8y ago
I believe it's typical for such clauses to last forever. Whether or not you're willing to sign it is an entirely personal choice. Consider whether it would ever be genuinely advantageous for you to speak negatively about the company in public. And also whether you can tolerate the existential oppression.
clhodapp 8y ago
Common or not, it is ridiculous to allow a company to insulate themselves against disparagement for unknown future conduct. It would be one thing to rule out disparaging them if it were backward-looking. You could think about what they had done and say "yep, they haven't done anything all that bad." However, they could do literally anything in the future so it really shouldn't be acceptable at all to give them carte blanche for arbitrary behavior. Of course, at the end of the day it's your choice if you want to sell some of your basic rights for this job, of course (in my opinion, though, it shouldn't be: this should be very illegal).
- tathougies 8y ago
  Yeah, it's insane. In my opinion, every state should void these clauses as being against the public policy.
tripletao 8y ago
I've never been asked to sign a non-disparagement clause, in a couple large companies and a few startups. I've seen a few, which were time-limited. In a merger situation (or any other where you're already employed), passive chicken is sometimes effective. Like, say that: 1. You love the company and can't imagine ever "disparaging" it, in the common English sense of the word; 2. but you're not sure what their clause actually means legally, since you're not a lawyer, and you are always very careful to abide by the contracts you sign; 3. so it really would be simpler to remove that language. Then just keep delaying, and see what happens. They'll either revise the contract, or forget about it entirely, or start talking about a termination date.
- anonDisparage 8y ago
  Thank you very much, I think this is the most sound approach forward. Based on conversations today, they seemed unwilling to revise the contract, so either forgetfulness or possible termination seems close in my future!
  - icedchai 8y ago
    Revise it yourself. Odds are the HR drones will never check it. Problem solved. Example: http://www.adamsdrafting.com/making-sneaky-changes-to-a-contract-before-signing-it/ http://www.adamsdrafting.com/making-sneaky-changes-to-a-cont... Worse case, they notice it, you have some lulz, and you're back to where you are now.
    - tripletao 8y ago
      Didn't stay "solved": > Plaintiff is ordered to turn over $14,940.19 plus accrued interest, and premium payments for five months of COBRA coverage plus interest, in the manner designated by Defendant. https://casetext.com/case/allen-v-chanel-inc-1 https://casetext.com/case/allen-v-chanel-inc-1 Though she avoided criminal fraud charges, so I guess that's something?
    - anonDisparage 8y ago
      Contract includes a clause that any modifications are invalid unless initialed by an manager
ApolloRising 8y ago
You can try editing it and adding a year after the employment period ends. Lawyers always ask for everything, a 1 year period usually is enough.
dTal 8y ago
Careful, your public implication that this is unreasonable may constitute disparagement and be grounds for termination! What happens if you don't sign? Termination? That probably makes the contract signed under duress and invalid. In practical terms, what are they gonna do if you "disparage" them after you've left? Sue? Do they have to prove damages, or is there an enforced liquidated damages clause (set amount you agree to pay)? I would fight it gently using the method tripletao describes, but if push comes to shove it's probably not worth taking too seriously. IANAL
- tripletao 8y ago
  > What happens if you don't sign? Termination? That probably makes the contract signed under duress and invalid. It's complicated and varies by state; but if you're an employee at will, then your continued employment is often sufficient consideration to make the new contract enforceable.
- falcolas 8y ago
  In at-will employment conditions, continued employment is considered to be sufficient "consideration" for any employment contract changes. i.e. no, "duress" will probably not invalidate the contract. Of course, I'm not a lawyer either.
- anonDisparage 8y ago
  > What happens if you don't sign? Termination? Yes, I am employed in an at will state. They seemed unwilling to negotiate the language with me, so I think that I will be terminated if I refuse to sign.
newscracker 8y ago
Having been in a few large tech companies that have merged or split over the course of time, creating the need to sign new employment agreements, I haven't seen this at all. I have no idea how common this is and in what kinds of companies. But one thing I'd advice anyone is never to disparage a past employer in public (exceptions are harassment, which is illegal in most places anyway, and other illegal practices that one could fight in a court of law). The tech world is quite small because of people moving around and because of networking among people. So it's ill advised to burn bridges while or after leaving a company, however bad they may have treated one on assigning work or on career growth or anything else. If you don't have serious issues with how you see the company may be going, sign the agreement. If you have serious issues, find another job right away. In either case, not disparaging the company is always a good idea. There are certain things in life that one ought to just let go of and not bother about. This is one of them, according to me.
- anonDisparage 8y ago
  I have no intention to disparage any past employer in public for the exact reasons that you mentioned. The whole putting it in the contract forever though is what rubs me the wrong way
tytytytytytytyt 8y ago
How badly do they need you?
nitwit005 8y ago
I haven't heard of such a provision for a tech company. I'd suggest that if you request a change to their contract, ask that it be limited to false or misleading statements, and cite some worry like concern over a personal blog or similar. It's usually best to come across as having a specific and practical concern.
tathougies 8y ago
I would not sign, period. The clauses are likely unenforceable (in California at least), but -- in my opinion -- any company willing to put such rubbish in their contracts is likely to abuse their power. That being said, if you can't afford the consequences, then I guess I'd sign it, and start looking. IANAL
trcollinson 8y ago
I am not a lawyer but I went to law school and know a few things. Talk to a lawyer and take my comments with a grain of salt. Also this only applied within the United States. The legal definition of disparagement is closely related to a freedom of speech. In order to disparage, legally, you must make a statement that is false, injurious, and derogatory. That’s actually illegal in perpetuity with or without signing that statement. You can’t make a false, injurious, derogatory statement about an organization. On the other hand some companies have attempted to change the definition of disparagement to mean something else. For example “you can’t say anything bad about your experience at the company.” Nope, sorry, that doesn’t fit the legal definition of disparagement. If you say something bad about your time at the company, which is true, it’s not disparagement. It’s a right according to your freedom of speech. And you can’t sign away that right. However, even this gets misunderstood. A corporation does not have to allow you to say anything you want without repercussions. They just can only hand down repercussions that they have access too. For example, if you were to say bad things about the company you work for that are true, they do not have to continue to employ you. Or ever employ you again. That is their right. But they can’t say that you can’t say those things. They also have the right to attempt a civil action against you for disparagement. They may win or lose. So anyway, are you over reacting? Maybe. I doubt that any paper about disparagement would actually change any of your rights in any way at all.
- dragonwriter 8y ago
  I think you are confusing disparagement with defamation: disparagement is basically saying anything negative about the company whether or not it meets the standard for defamation. http://www.jaburgwilk.com/news-publications/what-is-a-non-disparagement-clause-and-why-you-may-not-want-to-sign-one http://www.jaburgwilk.com/news-publications/what-is-a-non-di...
  - trcollinson 8y ago
    This was an absolutely fabulous read! I was looking for a case like this to try to counter my argument. The issue I have seen with quite a few cases was that they were individuals versus individuals or individual being disparaged by a larger corporate entity. This one spins it on its head. Very nice!
switch007 8y ago
If you don't have much leverage this might quickly turn in to not having a job any more. Them stating "it's a common/normal/standard term" or feigning surprise/ignorance to me seems the signal for that. I don't personally believe Hanlon's razor applies in these circumstances.
cweagans 8y ago
Personally, I won't sign anything that doesn't have a termination date. There are very few reasons to do so, IMO.
hguhghuff 8y ago
>> am I overreacting to this? Yes. Who cares really? Do you feel you need the right to do this - no? Then spend your time thinking about something else.
debacle 8y ago
Don't sign any non-disparagement agreement that is not mutual!
sjg007 8y ago
Probably not enforceable..
siegel 8y ago
First things first, this is not remotely common from anything I've seen and I've reviewed a lot of employment agreements in M&A contexts. Second, I'd be curious what they are referring to as "disparagement." Is that defined in the agreement? Third, I'm not sure what state you are in, but that might matter. I haven't researched the issue and there may be case law already. But my guy instinct is that this would violate public policy in a state like California, perhaps depending on what "disparagement" is meant to mean. I'll give you one reason why. California, as you might know, is very hostile to restraints on ability to pursue a profession (most notable example - non-compete agreements). If you cannot disparage your employer post-employment, that may make it impossible to compete with them. Of course, this depends on what disparagement means. Absent contract, the main restrictions on commercial speech that "disparage" a competitor are in the world of defamation and trade libel law (on a state level) and the Lanham Act/unfair competition law (largely on a federal level). This is gross oversimplification, but good enough for the moment. Those laws generally require proof of falsity or misleading nature of the underlying speech. A non-disparagement clause, on the other hand, is a contractual obligation that goes further than that. It CAN, depending on the wording, extend to truthful speech. And it often does. Competitors need to be able to distinguish their products and services from each other - most notably in ways that promote their own services as "better" than the other or by noting flaws in their competitors products and services. This is part of healthy competition. Defamation, trade libel, and unfair competition laws all permit this. But it's not necessarily possible with a non-disparagement clause. And, therefore, the ability to compete fairly is materially diminished. I would note that even in California, there are exceptions to the public policy ban on non-competes in the M&A context. And that might be read to extend the public policy concerns around a non-disparagement clause. But the contractual terms need to be narrowly tailored. It has to terminate at some point. Perpetual restrictions are not enforceable. TL;DR: This isn't normal. You're not overreacting.

25 points by anonDisparage 8y ago

orangecat 8y ago

I was told this was common for the industry That is not at all common, at least not for ordinary employees.

anonDisparage 8y ago
To clarify, do you find that a non-disparagement clause is uncommon, or just the unlimited time frame?
- taytus 8y ago
  I had to sign a non-disparagement agreement (also with unlimited time frame) when I left my latest company. I was lead developer there, not sure if the position matters. I signed because I really don't have anything negative to say about that company. Your situation maybe is different.
  - dTal 8y ago
    >I really don't have anything negative to say about that company Ah, but you would say that, wouldn't you?
  - tripletao 8y ago
    I hope this was in exchange for severance pay, or some other benefit? If not, then the best option is usually to take the contract, promise to review it carefully, and do nothing.
    - taytus 8y ago
      Yes, it was in exchange for severance pay. Thank you so much for your advice.

staticautomatic 8y ago

I believe it's typical for such clauses to last forever. Whether or not you're willing to sign it is an entirely personal choice. Consider whether it would ever be genuinely advantageous for you to speak negatively about the company in public. And also whether you can tolerate the existential oppression.

clhodapp 8y ago

Common or not, it is ridiculous to allow a company to insulate themselves against disparagement for unknown future conduct. It would be one thing to rule out disparaging them if it were backward-looking. You could think about what they had done and say "yep, they haven't done anything all that bad." However, they could do literally anything in the future so it really shouldn't be acceptable at all to give them carte blanche for arbitrary behavior. Of course, at the end of the day it's your choice if you want to sell some of your basic rights for this job, of course (in my opinion, though, it shouldn't be: this should be very illegal).

tathougies 8y ago
Yeah, it's insane. In my opinion, every state should void these clauses as being against the public policy.

tripletao 8y ago

I've never been asked to sign a non-disparagement clause, in a couple large companies and a few startups. I've seen a few, which were time-limited. In a merger situation (or any other where you're already employed), passive chicken is sometimes effective. Like, say that: 1. You love the company and can't imagine ever "disparaging" it, in the common English sense of the word; 2. but you're not sure what their clause actually means legally, since you're not a lawyer, and you are always very careful to abide by the contracts you sign; 3. so it really would be simpler to remove that language. Then just keep delaying, and see what happens. They'll either revise the contract, or forget about it entirely, or start talking about a termination date.

anonDisparage 8y ago
Thank you very much, I think this is the most sound approach forward. Based on conversations today, they seemed unwilling to revise the contract, so either forgetfulness or possible termination seems close in my future!
- icedchai 8y ago
  Revise it yourself. Odds are the HR drones will never check it. Problem solved. Example: http://www.adamsdrafting.com/making-sneaky-changes-to-a-contract-before-signing-it/ http://www.adamsdrafting.com/making-sneaky-changes-to-a-cont... Worse case, they notice it, you have some lulz, and you're back to where you are now.
  - tripletao 8y ago
    Didn't stay "solved": > Plaintiff is ordered to turn over $14,940.19 plus accrued interest, and premium payments for five months of COBRA coverage plus interest, in the manner designated by Defendant. https://casetext.com/case/allen-v-chanel-inc-1 https://casetext.com/case/allen-v-chanel-inc-1 Though she avoided criminal fraud charges, so I guess that's something?
  - anonDisparage 8y ago
    Contract includes a clause that any modifications are invalid unless initialed by an manager

ApolloRising 8y ago

You can try editing it and adding a year after the employment period ends. Lawyers always ask for everything, a 1 year period usually is enough.

dTal 8y ago

Careful, your public implication that this is unreasonable may constitute disparagement and be grounds for termination! What happens if you don't sign? Termination? That probably makes the contract signed under duress and invalid. In practical terms, what are they gonna do if you "disparage" them after you've left? Sue? Do they have to prove damages, or is there an enforced liquidated damages clause (set amount you agree to pay)? I would fight it gently using the method tripletao describes, but if push comes to shove it's probably not worth taking too seriously. IANAL

tripletao 8y ago
> What happens if you don't sign? Termination? That probably makes the contract signed under duress and invalid. It's complicated and varies by state; but if you're an employee at will, then your continued employment is often sufficient consideration to make the new contract enforceable.
falcolas 8y ago
In at-will employment conditions, continued employment is considered to be sufficient "consideration" for any employment contract changes. i.e. no, "duress" will probably not invalidate the contract. Of course, I'm not a lawyer either.
anonDisparage 8y ago
> What happens if you don't sign? Termination? Yes, I am employed in an at will state. They seemed unwilling to negotiate the language with me, so I think that I will be terminated if I refuse to sign.

newscracker 8y ago

Having been in a few large tech companies that have merged or split over the course of time, creating the need to sign new employment agreements, I haven't seen this at all. I have no idea how common this is and in what kinds of companies. But one thing I'd advice anyone is never to disparage a past employer in public (exceptions are harassment, which is illegal in most places anyway, and other illegal practices that one could fight in a court of law). The tech world is quite small because of people moving around and because of networking among people. So it's ill advised to burn bridges while or after leaving a company, however bad they may have treated one on assigning work or on career growth or anything else. If you don't have serious issues with how you see the company may be going, sign the agreement. If you have serious issues, find another job right away. In either case, not disparaging the company is always a good idea. There are certain things in life that one ought to just let go of and not bother about. This is one of them, according to me.

anonDisparage 8y ago
I have no intention to disparage any past employer in public for the exact reasons that you mentioned. The whole putting it in the contract forever though is what rubs me the wrong way

tytytytytytytyt 8y ago

How badly do they need you?

nitwit005 8y ago

I haven't heard of such a provision for a tech company. I'd suggest that if you request a change to their contract, ask that it be limited to false or misleading statements, and cite some worry like concern over a personal blog or similar. It's usually best to come across as having a specific and practical concern.

tathougies 8y ago

I would not sign, period. The clauses are likely unenforceable (in California at least), but -- in my opinion -- any company willing to put such rubbish in their contracts is likely to abuse their power. That being said, if you can't afford the consequences, then I guess I'd sign it, and start looking. IANAL

trcollinson 8y ago

I am not a lawyer but I went to law school and know a few things. Talk to a lawyer and take my comments with a grain of salt. Also this only applied within the United States. The legal definition of disparagement is closely related to a freedom of speech. In order to disparage, legally, you must make a statement that is false, injurious, and derogatory. That’s actually illegal in perpetuity with or without signing that statement. You can’t make a false, injurious, derogatory statement about an organization. On the other hand some companies have attempted to change the definition of disparagement to mean something else. For example “you can’t say anything bad about your experience at the company.” Nope, sorry, that doesn’t fit the legal definition of disparagement. If you say something bad about your time at the company, which is true, it’s not disparagement. It’s a right according to your freedom of speech. And you can’t sign away that right. However, even this gets misunderstood. A corporation does not have to allow you to say anything you want without repercussions. They just can only hand down repercussions that they have access too. For example, if you were to say bad things about the company you work for that are true, they do not have to continue to employ you. Or ever employ you again. That is their right. But they can’t say that you can’t say those things. They also have the right to attempt a civil action against you for disparagement. They may win or lose. So anyway, are you over reacting? Maybe. I doubt that any paper about disparagement would actually change any of your rights in any way at all.

dragonwriter 8y ago
I think you are confusing disparagement with defamation: disparagement is basically saying anything negative about the company whether or not it meets the standard for defamation. http://www.jaburgwilk.com/news-publications/what-is-a-non-disparagement-clause-and-why-you-may-not-want-to-sign-one http://www.jaburgwilk.com/news-publications/what-is-a-non-di...
- trcollinson 8y ago
  This was an absolutely fabulous read! I was looking for a case like this to try to counter my argument. The issue I have seen with quite a few cases was that they were individuals versus individuals or individual being disparaged by a larger corporate entity. This one spins it on its head. Very nice!

switch007 8y ago

If you don't have much leverage this might quickly turn in to not having a job any more. Them stating "it's a common/normal/standard term" or feigning surprise/ignorance to me seems the signal for that. I don't personally believe Hanlon's razor applies in these circumstances.

cweagans 8y ago

Personally, I won't sign anything that doesn't have a termination date. There are very few reasons to do so, IMO.

hguhghuff 8y ago

>> am I overreacting to this? Yes. Who cares really? Do you feel you need the right to do this - no? Then spend your time thinking about something else.

debacle 8y ago

Don't sign any non-disparagement agreement that is not mutual!

sjg007 8y ago

Probably not enforceable..

siegel 8y ago

First things first, this is not remotely common from anything I've seen and I've reviewed a lot of employment agreements in M&A contexts. Second, I'd be curious what they are referring to as "disparagement." Is that defined in the agreement? Third, I'm not sure what state you are in, but that might matter. I haven't researched the issue and there may be case law already. But my guy instinct is that this would violate public policy in a state like California, perhaps depending on what "disparagement" is meant to mean. I'll give you one reason why. California, as you might know, is very hostile to restraints on ability to pursue a profession (most notable example - non-compete agreements). If you cannot disparage your employer post-employment, that may make it impossible to compete with them. Of course, this depends on what disparagement means. Absent contract, the main restrictions on commercial speech that "disparage" a competitor are in the world of defamation and trade libel law (on a state level) and the Lanham Act/unfair competition law (largely on a federal level). This is gross oversimplification, but good enough for the moment. Those laws generally require proof of falsity or misleading nature of the underlying speech. A non-disparagement clause, on the other hand, is a contractual obligation that goes further than that. It CAN, depending on the wording, extend to truthful speech. And it often does. Competitors need to be able to distinguish their products and services from each other - most notably in ways that promote their own services as "better" than the other or by noting flaws in their competitors products and services. This is part of healthy competition. Defamation, trade libel, and unfair competition laws all permit this. But it's not necessarily possible with a non-disparagement clause. And, therefore, the ability to compete fairly is materially diminished. I would note that even in California, there are exceptions to the public policy ban on non-competes in the M&A context. And that might be read to extend the public policy concerns around a non-disparagement clause. But the contractual terms need to be narrowly tailored. It has to terminate at some point. Perpetual restrictions are not enforceable. TL;DR: This isn't normal. You're not overreacting.