7 ms·

It should not be legal to enforce this kind of thing 9 years after a person leaves your company. I get that it currently is legal, but have some principles. Jus

by RIMR 6mo ago

It should not be legal to enforce this kind of thing 9 years after a person leaves your company. I get that it currently is legal, but have some principles. Just because this is legal doesn't mean it isn't morally reprehensible, and its legality should be challenged.

jeffbee 6mo ago
That's a ridiculous constraint to put on the freedom to enter into contracts.
- Avicebron 6mo ago
  So allowing someone to sign themselves into slavery should be "legal" because it's "impinging on someone's right to enter contracts"? I get that some people balk at "morally reprehensible" as some sort of slippery slope, but c'mon we as individuals have to function somewhat coherently. As a social species reliant on some form of social cohesion (how much oil did you refine this morning?) we have to have some guidelines.
  - jonahx 6mo ago
    Fwiw, I think making such non-disparagement clauses illegal is an interesting idea, and could be a net positive. That said, I think the slavery comparison is a stretch. The situation up for debate is: Should you be able to voluntarily accept money in exchange for promising not to say bad things about someone or some company? I don't see a good faith interpretation of that as "signing yourself into slavery".
    - dragonwriter 6mo ago
      > Fwiw, I think making such non-disparagement clauses illegal is an interesting idea, and could be a net positive. That said, I think the slavery comparison is a stretch. Arguably, its more like non-compete agreements but with the added fact that state enforcement of the agreements is in tension with freedom of speech. But, you know, lots of jurisdictions sharply restrict enforceability of non-competes, too.
    - wtallis 6mo ago
      Nobody was trying to equate non-disparagement clauses with slavery. The relevance of slavery here is as an example of the kind of contract terms that everyone should be able to agree are rightly invalid and unenforceable. Any argument in favor of contract enforceability that would apply to a slavery contract just as easily as it applies to a non-disparagement contract is a bad argument, or at least woefully incomplete. Bringing up slavery serves as a necessary reminder that the details and nuance of the contract terms and their effects need to be discussed and argued, and that an unqualified "contracts should be valid" position is untenable and oversimplified.
      - ryandrake 6mo ago
        The general principle is that you shouldn't be able to "sign away" something that's a constitutional or human right. Like the right to freely speak, the right to practice a religion, the right to be paid for work, and so on. Imagine if the severance contract specified that she had to convert to Islam in order to get her severance, or that she had to sacrifice a child. No court in the country would consider those clauses conscionable. Yet, somehow companies are allowed to gag your free speech as a condition in a contract? It makes no sense why this is allowed.
        zeroonetwothree 6mo ago
        Everyone who has a job that requires them to speak for their employer signs away their “free speech” right to an extent. Your proposal would not lead to a tenable system.
      - bad_haircut72 6mo ago
        This is legalized buying people off, yes these contracts ought to be illegal and the comparison to slavery (a worse, but same category of morally reprehensible power dynamic) is completely valid
  - jeffbee 6mo ago
    We already recognize that contracts that violate one party's fundamental human rights cannot be enforced because they "shock the conscience", in terms that American jurists use. This article does not include the terms of the non-disparagement clause, or the other terms and payments, so we can't really say whether the clause is vulnerable to being ruled unenforceable by courts. But it's wrong to say that nobody can enter into contracts that constrain their speech. People do that all the time.
    - deleted 6mo ago
      [deleted]
  - prepend 6mo ago
    I mean it is currently legal in most countries to do that. Read about record contracts. Prince spoke extensively about his restrictive contracts.
  - mathgeek 6mo ago
    Legally, your "slavery" distinction is not the same thing as agreeing not to speak a certain way about a company. Slavery implies that you can be forced to do things that you do not want to do, as it is inclusive of future decisions by the other party. Agreeing to not so some specific action, while it does bind you from future freedoms, is exclusive of any other action the party may wish you to undertake. (IANAL)
- tuckerman 6mo ago
  For arbitrary contracts I would agree, but I think increasing the limitations in severance agreements specifically makes sense. There are already certain requirements (at least in California) for severance agreements and I think limiting the duration of non-disparagement clauses to 1-2 years would be a positive change.
  - zeroonetwothree 6mo ago
    I think that’s a good proposal.
- mindslight 6mo ago
  You're invoking a common "libertarian" trope, so I'm going to address that larger topic. Right-fundamentalist (ie axiomatic) "libertarianism" is fallacious. Logically, by asserting an unlimited "right" to contract, one can straightforwardly reframe any totalitarian state as merely being contracts between the state and its citizens/subjects/victims. And simply renaming things clearly does not make for a society that respects individual liberty! The only sensible way to approach libertarianism is to qualitatively evaluate individual liberty. And being prohibited from speaking 8 years after the fact, especially when there is a compelling public interest, is in no way equitable. If they want her continued silence, they should have to buy that on the order of year to year.
  - zeroonetwothree 6mo ago
    Contracts are entered by private individuals, not by the state. So your pithy claim to instantly demolish the idea is not actually effective.
    - mindslight 6mo ago
      I don't understand your argument. Contracts can generally be entered into by private individuals as well as by legal entities like the state. If you're making an argument that the right to contract should be unlimited between individuals (and perhaps unlimited between legal entities), but should be limited when made between individuals and artificial legal entities, that would be an interesting framing to explore. But afaik it's not really a popular one. (although I don't know that such a framework would actually invalidate what I said, especially for autocratic totalitarian states - each citizen of North Korea could just as easily be said to have a contract with Kim Jong Un himself)
- cwillu 6mo ago
  This sort of ridiculous “criticism” is why I have a hard time taking libertarians seriously.
  - greenchair 6mo ago
    good observation comrade!
- josephcsible 6mo ago
  IMO, "freedom to enter into contracts" isn't actual freedom, for the same reason that the MIT license isn't more free than the GPL despite it allowing more behaviors: in both cases, it's basically "permission to have your freedom taken away".
- 1qaboutecs 6mo ago
  The government enforces contracts, so it gets to choose which contracts it enforces. Without a functioning judicial system (and a law enforcement system to enforce its verdicts), a contract is a piece of paper. Plenty of contracts benefit both parties but are bad for society as a whole, and if the government pre-signals which sorts of those contracts it will refuse to enforce, this is good for society.
- CalChris 6mo ago
  Article I, Section 10: “No State shall … pass any … Law impairing the Obligation of Contracts. This doesn’t limit the Feds. Also, a state can prohibit non-compete. Etc. Basically, the freedom to enter into a contract is not one of the four corndogs of freedom.
- mattbee 6mo ago
  The law (OK, well, British law) does recognise that many terms can be Unfair especially when one of the parties is an individual, and especially when it relates to employment. They can nullify them on that basis.
- Samson_Corwell 6mo ago
  > That's a ridiculous constraint to put on the freedom to enter into contracts. Then it's a good thing this doesn't do that. Instead, all it would do is take away enforcement of non-disparagement clauses. That gives people more freedom. Because, contract law is just law that compels people to keep promises they make. The reason we have contract law is commitment. This is sometimes necessary to keep things flowing smoothly, but it this principle can very quickly lead to extremely intrusive government. As a consequence, we have to keep it carefully trimmed.
seneca 6mo ago
Why would it not be legal to enforce a contract after 9 years? If she didn't want it enforced after a duration, she could have negotiated for that, or just not signed it. I don't see how it's principled to legally swear to not do something, then turn around and do it anyways. She's an adult, she has agency, and she chose to enter that contract. It's also not like we're talking about a legal whistleblower here. That act DOES (and should) have a lot of legal protections. This is someone writing a book that they personally profit from.
- tclancy 6mo ago
  Because it’s unbalanced. The company benefits for as long as the ex-employee is alive, the ex-employee’s trade, theoretically of a high salary and privilege for keeping shtum winds down fairly quickly.
- SoftTalker 6mo ago
  I basically agree but as a civil instrument, a contract is not a law. The only consequence of violating a contract should be having to pay back whatever damages were caused. Not prohibitions on behavior or other freedoms. Enforced by whom? Corporations will violate contracts all the time as a cost of business if the cost of the violation is less than the benefit gained.
  - prepend 6mo ago
    In the US, a contract is considered law. It’s just only between the parties.
    - Supermancho 6mo ago
      Tort law and criminal law are two of the many subtypes.
    - SoftTalker 6mo ago
      You will not go to jail for breaking a contract. The only remedies are civil.
pwdisswordfishy 6mo ago
It should not be legal to enforce full stop. If you don't want to be disparaged, make your conduct worthy of not being disparaged. When you're being lied about, sue for defamation; "non-disparagement clauses" are redundant at best, an attack on free speech at worst.
- mathgradthrow 6mo ago
  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?
prepend 6mo ago
She didn’t have to agree to the contract. I don’t really want some arbitrary govt limit restricting what private parties can do with each other.
- roywiggins 6mo ago
  The only way these sorts of contracts can be enforced is if private parties have recourse to government powers- civil courts- to enforce them. Governments could just not help them do that.
- Dylan16807 6mo ago
  I very much want the government restricting employment-related contracts myself. And NDAs and similar, with their entire purpose being restricting speech, should also be restricted pretty strongly.
- johnnyanmac 6mo ago
  > I don’t really want some arbitrary govt limit restricting what private parties can do with each other. Given that this runs tangential with whistleblowing and free speech, this is exactly where I want a government to draw a line.
  - wavemode 6mo ago
    But it was a severance agreement. She accepted a sum of money for agreeing to not disparage. You don't see anything wrong with someone knowingly accepting these funds, and then turning around and immediately violating the agreement by writing a book (making even more money in the process)? If it's about whistleblowing and doing the right thing, why not just refuse the money?
    - throwaway173738 6mo ago
      There should be a statute of limitations on this stuff. Otherwise we’ll see things like chemical plant employees who signed such an agreement keeping stories of dumping to their deathbeds.

by RIMR 6mo ago

jeffbee 6mo ago

That's a ridiculous constraint to put on the freedom to enter into contracts.

Avicebron 6mo ago
So allowing someone to sign themselves into slavery should be "legal" because it's "impinging on someone's right to enter contracts"? I get that some people balk at "morally reprehensible" as some sort of slippery slope, but c'mon we as individuals have to function somewhat coherently. As a social species reliant on some form of social cohesion (how much oil did you refine this morning?) we have to have some guidelines.
- jonahx 6mo ago
  Fwiw, I think making such non-disparagement clauses illegal is an interesting idea, and could be a net positive. That said, I think the slavery comparison is a stretch. The situation up for debate is: Should you be able to voluntarily accept money in exchange for promising not to say bad things about someone or some company? I don't see a good faith interpretation of that as "signing yourself into slavery".
  - dragonwriter 6mo ago
    > Fwiw, I think making such non-disparagement clauses illegal is an interesting idea, and could be a net positive. That said, I think the slavery comparison is a stretch. Arguably, its more like non-compete agreements but with the added fact that state enforcement of the agreements is in tension with freedom of speech. But, you know, lots of jurisdictions sharply restrict enforceability of non-competes, too.
  - wtallis 6mo ago
    Nobody was trying to equate non-disparagement clauses with slavery. The relevance of slavery here is as an example of the kind of contract terms that everyone should be able to agree are rightly invalid and unenforceable. Any argument in favor of contract enforceability that would apply to a slavery contract just as easily as it applies to a non-disparagement contract is a bad argument, or at least woefully incomplete. Bringing up slavery serves as a necessary reminder that the details and nuance of the contract terms and their effects need to be discussed and argued, and that an unqualified "contracts should be valid" position is untenable and oversimplified.
    - ryandrake 6mo ago
      The general principle is that you shouldn't be able to "sign away" something that's a constitutional or human right. Like the right to freely speak, the right to practice a religion, the right to be paid for work, and so on. Imagine if the severance contract specified that she had to convert to Islam in order to get her severance, or that she had to sacrifice a child. No court in the country would consider those clauses conscionable. Yet, somehow companies are allowed to gag your free speech as a condition in a contract? It makes no sense why this is allowed.
      - zeroonetwothree 6mo ago
        Everyone who has a job that requires them to speak for their employer signs away their “free speech” right to an extent. Your proposal would not lead to a tenable system.
    - bad_haircut72 6mo ago
      This is legalized buying people off, yes these contracts ought to be illegal and the comparison to slavery (a worse, but same category of morally reprehensible power dynamic) is completely valid
- jeffbee 6mo ago
  We already recognize that contracts that violate one party's fundamental human rights cannot be enforced because they "shock the conscience", in terms that American jurists use. This article does not include the terms of the non-disparagement clause, or the other terms and payments, so we can't really say whether the clause is vulnerable to being ruled unenforceable by courts. But it's wrong to say that nobody can enter into contracts that constrain their speech. People do that all the time.
  - deleted 6mo ago
    [deleted]
- prepend 6mo ago
  I mean it is currently legal in most countries to do that. Read about record contracts. Prince spoke extensively about his restrictive contracts.
- mathgeek 6mo ago
  Legally, your "slavery" distinction is not the same thing as agreeing not to speak a certain way about a company. Slavery implies that you can be forced to do things that you do not want to do, as it is inclusive of future decisions by the other party. Agreeing to not so some specific action, while it does bind you from future freedoms, is exclusive of any other action the party may wish you to undertake. (IANAL)
tuckerman 6mo ago
For arbitrary contracts I would agree, but I think increasing the limitations in severance agreements specifically makes sense. There are already certain requirements (at least in California) for severance agreements and I think limiting the duration of non-disparagement clauses to 1-2 years would be a positive change.
- zeroonetwothree 6mo ago
  I think that’s a good proposal.
mindslight 6mo ago
You're invoking a common "libertarian" trope, so I'm going to address that larger topic. Right-fundamentalist (ie axiomatic) "libertarianism" is fallacious. Logically, by asserting an unlimited "right" to contract, one can straightforwardly reframe any totalitarian state as merely being contracts between the state and its citizens/subjects/victims. And simply renaming things clearly does not make for a society that respects individual liberty! The only sensible way to approach libertarianism is to qualitatively evaluate individual liberty. And being prohibited from speaking 8 years after the fact, especially when there is a compelling public interest, is in no way equitable. If they want her continued silence, they should have to buy that on the order of year to year.
- zeroonetwothree 6mo ago
  Contracts are entered by private individuals, not by the state. So your pithy claim to instantly demolish the idea is not actually effective.
  - mindslight 6mo ago
    I don't understand your argument. Contracts can generally be entered into by private individuals as well as by legal entities like the state. If you're making an argument that the right to contract should be unlimited between individuals (and perhaps unlimited between legal entities), but should be limited when made between individuals and artificial legal entities, that would be an interesting framing to explore. But afaik it's not really a popular one. (although I don't know that such a framework would actually invalidate what I said, especially for autocratic totalitarian states - each citizen of North Korea could just as easily be said to have a contract with Kim Jong Un himself)
cwillu 6mo ago
This sort of ridiculous “criticism” is why I have a hard time taking libertarians seriously.
- greenchair 6mo ago
  good observation comrade!
josephcsible 6mo ago
IMO, "freedom to enter into contracts" isn't actual freedom, for the same reason that the MIT license isn't more free than the GPL despite it allowing more behaviors: in both cases, it's basically "permission to have your freedom taken away".
1qaboutecs 6mo ago
The government enforces contracts, so it gets to choose which contracts it enforces. Without a functioning judicial system (and a law enforcement system to enforce its verdicts), a contract is a piece of paper. Plenty of contracts benefit both parties but are bad for society as a whole, and if the government pre-signals which sorts of those contracts it will refuse to enforce, this is good for society.
CalChris 6mo ago
Article I, Section 10: “No State shall … pass any … Law impairing the Obligation of Contracts. This doesn’t limit the Feds. Also, a state can prohibit non-compete. Etc. Basically, the freedom to enter into a contract is not one of the four corndogs of freedom.
mattbee 6mo ago
The law (OK, well, British law) does recognise that many terms can be Unfair especially when one of the parties is an individual, and especially when it relates to employment. They can nullify them on that basis.
Samson_Corwell 6mo ago
> That's a ridiculous constraint to put on the freedom to enter into contracts. Then it's a good thing this doesn't do that. Instead, all it would do is take away enforcement of non-disparagement clauses. That gives people more freedom. Because, contract law is just law that compels people to keep promises they make. The reason we have contract law is commitment. This is sometimes necessary to keep things flowing smoothly, but it this principle can very quickly lead to extremely intrusive government. As a consequence, we have to keep it carefully trimmed.

seneca 6mo ago

Why would it not be legal to enforce a contract after 9 years? If she didn't want it enforced after a duration, she could have negotiated for that, or just not signed it. I don't see how it's principled to legally swear to not do something, then turn around and do it anyways. She's an adult, she has agency, and she chose to enter that contract. It's also not like we're talking about a legal whistleblower here. That act DOES (and should) have a lot of legal protections. This is someone writing a book that they personally profit from.

tclancy 6mo ago
Because it’s unbalanced. The company benefits for as long as the ex-employee is alive, the ex-employee’s trade, theoretically of a high salary and privilege for keeping shtum winds down fairly quickly.
SoftTalker 6mo ago
I basically agree but as a civil instrument, a contract is not a law. The only consequence of violating a contract should be having to pay back whatever damages were caused. Not prohibitions on behavior or other freedoms. Enforced by whom? Corporations will violate contracts all the time as a cost of business if the cost of the violation is less than the benefit gained.
- prepend 6mo ago
  In the US, a contract is considered law. It’s just only between the parties.
  - Supermancho 6mo ago
    Tort law and criminal law are two of the many subtypes.
  - SoftTalker 6mo ago
    You will not go to jail for breaking a contract. The only remedies are civil.

pwdisswordfishy 6mo ago

It should not be legal to enforce full stop. If you don't want to be disparaged, make your conduct worthy of not being disparaged. When you're being lied about, sue for defamation; "non-disparagement clauses" are redundant at best, an attack on free speech at worst.

mathgradthrow 6mo ago
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?

prepend 6mo ago

She didn’t have to agree to the contract. I don’t really want some arbitrary govt limit restricting what private parties can do with each other.

roywiggins 6mo ago
The only way these sorts of contracts can be enforced is if private parties have recourse to government powers- civil courts- to enforce them. Governments could just not help them do that.
Dylan16807 6mo ago
I very much want the government restricting employment-related contracts myself. And NDAs and similar, with their entire purpose being restricting speech, should also be restricted pretty strongly.
johnnyanmac 6mo ago
> I don’t really want some arbitrary govt limit restricting what private parties can do with each other. Given that this runs tangential with whistleblowing and free speech, this is exactly where I want a government to draw a line.
- wavemode 6mo ago
  But it was a severance agreement. She accepted a sum of money for agreeing to not disparage. You don't see anything wrong with someone knowingly accepting these funds, and then turning around and immediately violating the agreement by writing a book (making even more money in the process)? If it's about whistleblowing and doing the right thing, why not just refuse the money?
  - throwaway173738 6mo ago
    There should be a statute of limitations on this stuff. Otherwise we’ll see things like chemical plant employees who signed such an agreement keeping stories of dumping to their deathbeds.