4 ms·

It's time we took a serious look at getting rid of the unholy trinity of employment contract law: - Non-competes - Forced arbitration - Non-disparagement / NDA

by revel 8y ago

It's time we took a serious look at getting rid of the unholy trinity of employment contract law: - Non-competes - Forced arbitration - Non-disparagement / NDAs If an offer includes a non-compete, it should also include appropriate restitution to the employee for the opportunity cost involved. This means paid garden leave and also extra compensation to help employees find their next job since their skills are likely to have degraded during the fallow period. Forced arbitration is used to rob employees of their constitutional rights and I can't believe that the practice is legal. Lastly, non-disparagement clauses and NDAs are overly broad. I'm not opposed to NDAs with limited scope but NDAs have become blanket weapons used to cover up evidence of illegal or immoral acts by employers. This is particularly problematic when combined with forced arbitration since it means that employees subject to wage theft (for instance) are unable to join a class action suit and verdicts rendered by the arbitration court can be kept secret.

raverbashing 8y ago
Any clause that is valid after the termination of the contract (with the exceptions already in law, like IP) should have a compensatory counterpart
- konschubert 8y ago
  In Germany it's like this.
  - kitten_mittens_ 8y ago
    Assuming you can read German. My German is horrid, but the German company I work for assured me contracts can only be in German.
    - distances 8y ago
      For international companies it's common to provide a version in both German and English, with the caveat that only the German version is binding.
      - Azareus 8y ago
        That is how it was for me, I got a two-column contract with each paragraph in both languages.
- andrewla 8y ago
  It would be great to have this encoded in statute. In the US, the doctrine of consideration in contract law used to server to rein this in, but in the last century has been weakened to the point where it has become a non-factor in most contractual disputes.
- gowld 8y ago
  How would that matter, since money is fungible -- wages spend as well as Nnn-compete compensation.
justifier 8y ago
you forgot ip contracts i recently had a company try to have me sign a document claiming ownership of anything i create in the time i work for them; meaning the tenure i asked for clarification and without flinching they asserted that, 'yes, that includes on your own time and your own hardware even in a field wholly disparate from the one the company was in' i thanked the interviewer for having me in and explained that though i felt they seemed like a kind person the company they were representing was offensive and unethical first time i ever ended an interview early
- ghaff 8y ago
  At least it came up early in the process. Usually this is the sort of thing that gets sprung on someone after they've decided to accept an offer.
  - JJMcJ 8y ago
    Often in the first-day paperwork, or in the employee handbook which you don't see until day one, if at all. In days past, there would sometimes be clauses asserting ownership over all IP for rest of your life, till courts finally declared those too much, since they deprived people of their livelihoods. Cute factoid: Dr. Seuss (Theodore Geisel) was an advertising copywriter. He went into children's books because that was all that was permitted under his employment contract.
- crankylinuxuser 8y ago
  Wow, that is terrible. I remember the first time I ended an interview early. I was 19. I applied to a food factory job. The general manager interviewed me, and then asked me a question "Are you married, son? We like to support families." I said "That's an illegal question and you should know better. Good bye."
Glyptodon 8y ago
All three of these practices are basically a repudiation of both democracy and our legal system with extremely negative effects for society and representative government. I completely agree with you. Non-competes and forced arbitration are the beginning of a new system of corporate feudalism. (Want to move? Too bad, you're stuck on the fief by law.) What's that? Your lord wronged you? Well, appeal to the Duke and see what he says about it, forget what your peers think. NDAs make it so that the ills and wrongs of society never see the light of day and so can't be appropriately considered by citizens at the ballot box. Kind of like it used to be a crime to speak ill of the king...Yay modern lèse-majesté.
robaato 8y ago
Repeating a comment from another thread - this article shows what has been tried in some NDAs: https://www.theguardian.com/film/2018/aug/26/former-weinstein-assistant-urges-ban-contracts-silence-harassment-victims https://www.theguardian.com/film/2018/aug/26/former-weinstei... The clauses attached to the Weinstein agreement signed by Perkins offer an insight into how egregious some NDAs can be. She was prohibited from even obtaining a copy of the agreement – she could only look at it supervised at a law firm’s office, a clause that also prevented MPs from acquiring the document. Ultimately she obtained the agreement in June through a personal data request. Its contents confirmed that she was banned from talking to a doctor, therapist or psychoanalyst about Weinstein’s alleged harassment unless they also signed an NDA and that she should not speak about the payment even if HMRC questioned her about it. “If a therapist, for instance, broke the agreement, I would be held responsible for their disclosure. There were guns pointed from every angle,” said Perkins, who has since managed to rebuild her career as a successful associate producer.
- gowld 8y ago
  That's a very different scenario. That was a settlement offer -- Weinstein effectively offered her a bribe to drop her complaint and cover for him. She could choose to refuse the settlement and press her case through the courts, which of course would be the same option as if there was no settlement offer. Weinstein would never agree to pay her a settlement that didn't limit his liability -- the value of that to him is $0.

by revel 8y ago

raverbashing 8y ago

Any clause that is valid after the termination of the contract (with the exceptions already in law, like IP) should have a compensatory counterpart

konschubert 8y ago
In Germany it's like this.
- kitten_mittens_ 8y ago
  Assuming you can read German. My German is horrid, but the German company I work for assured me contracts can only be in German.
  - distances 8y ago
    For international companies it's common to provide a version in both German and English, with the caveat that only the German version is binding.
    - Azareus 8y ago
      That is how it was for me, I got a two-column contract with each paragraph in both languages.
andrewla 8y ago
It would be great to have this encoded in statute. In the US, the doctrine of consideration in contract law used to server to rein this in, but in the last century has been weakened to the point where it has become a non-factor in most contractual disputes.
gowld 8y ago
How would that matter, since money is fungible -- wages spend as well as Nnn-compete compensation.

justifier 8y ago

you forgot ip contracts i recently had a company try to have me sign a document claiming ownership of anything i create in the time i work for them; meaning the tenure i asked for clarification and without flinching they asserted that, 'yes, that includes on your own time and your own hardware even in a field wholly disparate from the one the company was in' i thanked the interviewer for having me in and explained that though i felt they seemed like a kind person the company they were representing was offensive and unethical first time i ever ended an interview early

ghaff 8y ago
At least it came up early in the process. Usually this is the sort of thing that gets sprung on someone after they've decided to accept an offer.
- JJMcJ 8y ago
  Often in the first-day paperwork, or in the employee handbook which you don't see until day one, if at all. In days past, there would sometimes be clauses asserting ownership over all IP for rest of your life, till courts finally declared those too much, since they deprived people of their livelihoods. Cute factoid: Dr. Seuss (Theodore Geisel) was an advertising copywriter. He went into children's books because that was all that was permitted under his employment contract.
crankylinuxuser 8y ago
Wow, that is terrible. I remember the first time I ended an interview early. I was 19. I applied to a food factory job. The general manager interviewed me, and then asked me a question "Are you married, son? We like to support families." I said "That's an illegal question and you should know better. Good bye."

Glyptodon 8y ago

All three of these practices are basically a repudiation of both democracy and our legal system with extremely negative effects for society and representative government. I completely agree with you. Non-competes and forced arbitration are the beginning of a new system of corporate feudalism. (Want to move? Too bad, you're stuck on the fief by law.) What's that? Your lord wronged you? Well, appeal to the Duke and see what he says about it, forget what your peers think. NDAs make it so that the ills and wrongs of society never see the light of day and so can't be appropriately considered by citizens at the ballot box. Kind of like it used to be a crime to speak ill of the king...Yay modern lèse-majesté.

robaato 8y ago

Repeating a comment from another thread - this article shows what has been tried in some NDAs: https://www.theguardian.com/film/2018/aug/26/former-weinstein-assistant-urges-ban-contracts-silence-harassment-victims https://www.theguardian.com/film/2018/aug/26/former-weinstei... The clauses attached to the Weinstein agreement signed by Perkins offer an insight into how egregious some NDAs can be. She was prohibited from even obtaining a copy of the agreement – she could only look at it supervised at a law firm’s office, a clause that also prevented MPs from acquiring the document. Ultimately she obtained the agreement in June through a personal data request. Its contents confirmed that she was banned from talking to a doctor, therapist or psychoanalyst about Weinstein’s alleged harassment unless they also signed an NDA and that she should not speak about the payment even if HMRC questioned her about it. “If a therapist, for instance, broke the agreement, I would be held responsible for their disclosure. There were guns pointed from every angle,” said Perkins, who has since managed to rebuild her career as a successful associate producer.

gowld 8y ago
That's a very different scenario. That was a settlement offer -- Weinstein effectively offered her a bribe to drop her complaint and cover for him. She could choose to refuse the settlement and press her case through the courts, which of course would be the same option as if there was no settlement offer. Weinstein would never agree to pay her a settlement that didn't limit his liability -- the value of that to him is $0.