Shortly after Will Blythe got let go from his job at Byliner, the writer got an innocent looking email. The termination agreement outlined his last date of employment, the vesting options, and if he'd have to return the iPad he got as a gift for Christmas.
Then came much less amenable clause. As he details in the New York Times:
What brings me up short is clause No. 12: No Disparagement. "You agree," it reads, "that you will never make any negative or disparaging statements (orally or in writing) about the Company or its stockholders, directors, officers, employees, products, services or business practices, except as required by law."
If I don’t agree to this nondisparagement clause, I will not receive my severance—in this case, the equivalent of two weeks of pay. Two weeks? Must be hard times out in San Francisco, or otherwise why the dirt parachute—and by the way, is that the sort of remark I won’t be allowed to make if I sign clause No. 12?
In effect, the clause makes a bargain: you, dear ex-employee, won't say anything bad about us, your employers. In exchange, we'll throw some extra pay your way. These things are increasingly common, Blythe reports: they're in "most settlement agreements and about a quarter of executive employment agreements."
Nondisparagement gets a woolly for a number of reasons: at least one company has used nondisparagement as a way to try to scare off online reviewers. Additionally, Blythe reports that there's no legal consensus of what disparagement is, while some (but not all) states have laws saying that to actually violate a nondisparagement contract requires not only disparaging your former employer, but also not telling the truth.
It's this truth stuff that's the sticking point for Blythe: truth has "caustically cleansing powers," he says. As a writer and editor, it would be the "unholiest of deals" to take the mob-movie pitch of money-for-silence.
"It’s not that I necessarily want to disparage," he continues, "but I want the freedom to do so, to be able to criticize, to attack, to carp, to excoriate, if need be."
And maybe, just maybe, make a dance video.
Readers! The biggest question is this: Would you take the nondisparagement agreement?
Hat tip: The New York Times