5 ms·

Is requiring an NDA for severance even legal? That's seriously sketchy

lotsofpulp 4y ago
Not providing severance pay at all is perfectly legal. In most cases, an employer will want at least something in return for providing severance pay.
- lottin 4y ago
  Why do they provide it then? Out of goodwill?
  - lotsofpulp 4y ago
    Sometimes, or that could be a partial reason as a signal to current and future employees about what management is like. But NDA is another reason, or even keeping unemployment insurance premiums low by having everyone that accepts severance state that they are voluntarily leaving the company in exchange for the severance. By voluntarily separating, they cannot collect unemployment benefits from the state, which means the state charged the employer less in unemployment insurance premiums.
  - mbreese 4y ago
    Yes. It makes it easier for them to hire down the road. If you know there is a parachute waiting for you, it’s easier to take a risk on joining the company once it starts growing again. But I suspect it’s mainly as a carrot to sign the NDA/non-compete/whatever else they want you to sign to keep not talk about what happened.
  - encryptluks2 4y ago
    Usually it is advantageous to offer it so that you don't sue them down the road and get more money. A lot of times it is less rewarding to take the first second or third settlement offer than to counter for quadruple what they offer.
  - ddingus 4y ago
    Yes, good will sometimes. Other times it may be all about giving someone a very strong incentive to play nice while they find a new gig. Sometimes people basically need it. These kinds of things are not always about the strict minimum cost actions. In general, it is a better world with some degree of human consideration being part of things. I am quite sure many of the cases I had involvement in could have been done cheaper. However, I am also quite sure the people involved had what they need to get through to their next gig with few worries too. That is worth a lot and these days one can never know who may be working for or with who.
SoftTalker 4y ago
The one time I was laid off I had to sign an NDA and a non-compete to get severance. I signed it because it was a decent severance package, and the company was going bankrupt and I figured there would not be any entity left that would care or try to enforce it.
- DeltaCoast 4y ago
  I strongly disagree with non-competes for file and rank employees but a non-compete for someone that was laid off is just ridiculous.
  - prepend 4y ago
    Well don’t sign it then. When I had to sign it, I totally agreed with it. I signed the NDA and got my check. I hope you start a company and are in a position to give severance to fired employees and not make them sign non-competes.
forbiddenvoid 4y ago
Not only an NDA - many companies also require you to sign anti-disparagement clauses, meaning you can have severance clawed back if you speak negatively of the company.
- hef19898 4y ago
  Something like that would never hold up in court, in fact it might even make the whole firing illegal in the first place. Unless, of course, so NDA's would also prevent the employer from speaking negatively about the employee, but those are extremely rare.
  - vxNsr 4y ago
    Do you have any reliable source for this? as it's fairly common in the industry. I know lots of things are common that turn out to be illegal, but this one is ripe to be tested time and again, and the fact that it's still being used implies that those challenges failed.
  - lazide 4y ago
    Hardly. Severence is non-statutory (aka optional), and those terms are quid-pro-quo and perfectly fine. If the employee doesn’t like the terms, they’ll just get the statutory minimum. It’s pretty rare anyone takes that option though!
  - acdha 4y ago
    You might be right but a lot of this stuff is based on the calculation that most people do not have the assets to wage a lengthy legal battle when they’re newly unemployed. I’ve heard a lot of stories about wildly illegal things which either went completely unchallenged or became moot because the company went busy with no assets.
  - hef19898 4y ago
    Just realized, but to late to edit, that I based my original comment on my home country. And that is not the US. Over here, even hardcore PIPs are regularly thrown out by courts as grounds for termination.
LightG 4y ago
yamtaddle 4y ago
NDAs/non-disparagement being required to receive severance is very common. Common enough I assume it must be legal.
User23 4y ago
Not just an NDA but a full general release is absolutely standard. It’s not worth buying you out if you’re not willing to sell your right to sue.
- AlexandrB 4y ago
  Isn't some amount of severance legally required during layoffs? That's not "buying someone out" that's complying with the law.
  - zerocrates 4y ago
    Not generally. There's no federal severance requirement. I think there might be a few states that require some kind of severance pay under some circumstances, but it's at least not common in the US.

Not providing severance pay at all is perfectly legal. In most cases, an employer will want at least something in return for providing severance pay.

lottin 4y ago
Why do they provide it then? Out of goodwill?
- lotsofpulp 4y ago
  Sometimes, or that could be a partial reason as a signal to current and future employees about what management is like. But NDA is another reason, or even keeping unemployment insurance premiums low by having everyone that accepts severance state that they are voluntarily leaving the company in exchange for the severance. By voluntarily separating, they cannot collect unemployment benefits from the state, which means the state charged the employer less in unemployment insurance premiums.
- mbreese 4y ago
  Yes. It makes it easier for them to hire down the road. If you know there is a parachute waiting for you, it’s easier to take a risk on joining the company once it starts growing again. But I suspect it’s mainly as a carrot to sign the NDA/non-compete/whatever else they want you to sign to keep not talk about what happened.
- encryptluks2 4y ago
  Usually it is advantageous to offer it so that you don't sue them down the road and get more money. A lot of times it is less rewarding to take the first second or third settlement offer than to counter for quadruple what they offer.
- ddingus 4y ago
  Yes, good will sometimes. Other times it may be all about giving someone a very strong incentive to play nice while they find a new gig. Sometimes people basically need it. These kinds of things are not always about the strict minimum cost actions. In general, it is a better world with some degree of human consideration being part of things. I am quite sure many of the cases I had involvement in could have been done cheaper. However, I am also quite sure the people involved had what they need to get through to their next gig with few worries too. That is worth a lot and these days one can never know who may be working for or with who.

SoftTalker 4y ago

The one time I was laid off I had to sign an NDA and a non-compete to get severance. I signed it because it was a decent severance package, and the company was going bankrupt and I figured there would not be any entity left that would care or try to enforce it.

DeltaCoast 4y ago
I strongly disagree with non-competes for file and rank employees but a non-compete for someone that was laid off is just ridiculous.
- prepend 4y ago
  Well don’t sign it then. When I had to sign it, I totally agreed with it. I signed the NDA and got my check. I hope you start a company and are in a position to give severance to fired employees and not make them sign non-competes.

forbiddenvoid 4y ago

Not only an NDA - many companies also require you to sign anti-disparagement clauses, meaning you can have severance clawed back if you speak negatively of the company.

hef19898 4y ago
Something like that would never hold up in court, in fact it might even make the whole firing illegal in the first place. Unless, of course, so NDA's would also prevent the employer from speaking negatively about the employee, but those are extremely rare.
- vxNsr 4y ago
  Do you have any reliable source for this? as it's fairly common in the industry. I know lots of things are common that turn out to be illegal, but this one is ripe to be tested time and again, and the fact that it's still being used implies that those challenges failed.
- lazide 4y ago
  Hardly. Severence is non-statutory (aka optional), and those terms are quid-pro-quo and perfectly fine. If the employee doesn’t like the terms, they’ll just get the statutory minimum. It’s pretty rare anyone takes that option though!
- acdha 4y ago
  You might be right but a lot of this stuff is based on the calculation that most people do not have the assets to wage a lengthy legal battle when they’re newly unemployed. I’ve heard a lot of stories about wildly illegal things which either went completely unchallenged or became moot because the company went busy with no assets.
- hef19898 4y ago
  Just realized, but to late to edit, that I based my original comment on my home country. And that is not the US. Over here, even hardcore PIPs are regularly thrown out by courts as grounds for termination.

LightG 4y ago

yamtaddle 4y ago

NDAs/non-disparagement being required to receive severance is very common. Common enough I assume it must be legal.

User23 4y ago

Not just an NDA but a full general release is absolutely standard. It’s not worth buying you out if you’re not willing to sell your right to sue.

AlexandrB 4y ago
Isn't some amount of severance legally required during layoffs? That's not "buying someone out" that's complying with the law.
- zerocrates 4y ago
  Not generally. There's no federal severance requirement. I think there might be a few states that require some kind of severance pay under some circumstances, but it's at least not common in the US.