Cool, so now can I talk about how my former employer offered me severance only if I signed something not to talk about it because I was about to file a long term disability case and they knew it?
> now can I talk about how my former employer offered me severance only if I signed something not to talk about it because I was about to file a long term disability case
Your right to talk to a lawyer was never jeapordised. Your right to complain to the NLRB or threaten litigation/arbitration was also probably never in question. (Your claims may now be strengthened or expanded.) Your right to disclose it publicly, e.g. here, may not be protected.
There's some interesting paragraphs in the full ruling about providing support for other employees going through similar things, which would be prevented by such a severance agreement with disparagement and non-disclosure clauses. It's worth a read.
Who was the head of the NLRB for both this case and the one it overturned? It smells of political decision making as the article points out it’s overturning a precedent from 2020 which itself was overturning previous precedent.
In 2020, John F. Ring was the chairman, joined by William Emanuel and Marvin Kaplan. All Republicans, save for lone dissenter Lauren McFerran.
McFerran is now the chairman, and Kaplan is still on the board. Ring and Emmanuel were replaced by David Prouty and Gwynne Wilcox, respectively. Both have union backgrounds.
I can't seem to find the original case to see the board make up then.
The Trump Whitehouse was in the process of intentionally contravening much of the administrative state - EPA, CDC, NRLB, IRS, USCIS, etc etc. So overturning precedent to favor anti-labor policy was perfectly consistent with the overall vision.
Could an employee receive severance and still be able to sue to determine if there was a WARN act violation or discrimination of federally protected classes?
It depends on when you signed the non-disparagement agreement.
> The decision involved severance agreements offered to furloughed employees that prohibited them from making statements that could disparage the employer and from disclosing the terms of the agreement itself.
Was the agreement part of getting hired? or getting laid off?
That said, I suspect that this will result in a reduction of severance agreements since there is very little that the company can gain out of a severance agreement now (I am assuming this also extends to various "you can't sue the company for wrongful termination" and similar).
A lot of severance stuff is questionably enforceable. Discrimination lawsuits can still be successfully brought under a number of circumstances. You can’t just put a clause in it. This is especially true if the employee is laid off and forced to sign immediately.
> That said, I suspect that this will result in a reduction of severance agreements since there is very little that the company can gain out of a severance agreement now (I am assuming this also extends to various "you can't sue the company for wrongful termination" and similar).
This wasn't the case from the establishment of the original precedent until 2020 when that ruling was reversed. We're simply going back to a state that has existed for decades, and in which severance agreements were by no means rare.
> Disparagement means anything negative statement about someone or something. So the non-disparagement provision in your employment agreement or severance agreement applies to any and every negative statement. It does not matter if the statement is true or not, opinion or fact. If your statement makes your employer look bad, it is disparagement.
If you have signed a non-disparagement agreement, the best advice is likely "decline to say anything about the subject."
I'd definitely be arguing, via a lawyer, that "negative" is in the eye of the beholder. Employees do not benefit from layoffs, shareowners do, for example.
No, arbitration companies are deliberately biased against employees.
Why? Because most of their income comes from the companies who front the fees for it. A company only fronts fees if they're more likely to win.
This isn't theoretical. It's a well known fact among employment law. Do not sign anything that causes disputes to move away from courts toward 3rd party arbitration. It's a sham.
Watch the video below. A lawyer details the whole thing:
As monksy says, arbitrators tend to grant smaller awards than juries. So for major cases, litigation is better. But arbitration is faster and cheaper for everyone. So for smaller claims (and I mean in litigation land, so under around $1mm) arbitration almost always increases options for consumers and usually does for employees.
Other countries use an actual small claims court for this sort of thing. Y'know, a court with an actual appointed judge (instead of a third party arbitrator who will in part be beholden to the person paying their wages) who can make the decision rapidly instead of waiting for several weeks before a decision is felled.
Arbitration in the US to me (as someone who's had to deal with that shit in digital service EULAs since I'm not in the US) always comes across as signing away your left eye to get a discount on eye surgery on your right eye. Sure, there's some benefit to that discount, but you're trading one hell of a lot away.
It's also usually paired up with things like a class action waiver and other assorted crap that mostly seems to exist to give the company an non-negotiable legal advantage over the consumer/employee.
If we are going to talk about other countries—-they don’t have class actions or gigantic punitive damages awards. Lawsuits are by and large intended to compensate people for their losses rather than be a substitute regulatory regime as in the US. Consumer arbitration, in practice if not theory, is much closer to that.
Small claims in the US is also focused on compensating victims, no?
So if the courts are so flawed why create an entire parallel system, funded by the richer parties? It reeks of selling justice. And the 'voluntary' opt out requires careful reading of lifetimes worth of text, postage, and repeating a bespoke process for every company one ever interacts with.
It all sounds to me like there is a bug in the kernel scheduler (judiciary) so dominant programs (say browsers) demand every app that interacts with them use their choice of user-space scheduler which the dominant party happens to have bankrolled. And all this instead of fixing the kernel.
Small claims are for small claims. No lawyers, no juries, no opinions; just a decision. Courts are great for large claims. Lawyers, juries and precedent-setting opinions.
In between are medium-sized claims where you want a lawyer but not a jury or opinion. (There are too many cases and they’re not individually worth it. If they’re worth it in aggregated, they should be certified as a class, something I don’t think one should be allowed to waive one’s right to.)
Arbitration emerged as a solution to claims too big and complex for small claims, but not worth litigating in court.
> also usually paired up with things like a class action waiver and other assorted crap
These are separate issues.
Arbitration excels at medium-sized claims. Should it be a public function? Absolutely. But that recognises that it has a function distinct from small claims and general litigation.
> could agree to arbitration or decide to go to trial
The point is to commit to a path ex ante. If I know someone has a $100k claim against me, and I have more liquidity than them, I’m not going to agree to arbitration.
In the real world, who does actually take a company to arbitration?
Tell a regular person that oh, you can sue the company in front of an arbiter of their choosing, who’s fees are paid by the company, and they will immediately walk away, because no one will believe they will get a fair hearing at what appears to be a rigged court.
The arbiters know which side of the bread is buttered. An arbiter who rules for the consumer too much finds himself out of work. You better have an ironclad case if you're going the arbitration route.
There's also the ban on class actions--effectively meaning small things become legal because very few will fight when the cost of fighting is more than the expected recovery. (In some places the government is guilty of that, also--the cost to contest a ticket may be higher than the cost of the ticket and not recoverable even if you win.)
I’m not sure about this. In reality, there’s very little incentive for anyone to dish on their former employers other than in small private circles, which probably happens even after signing these agreements anyways.
It makes you almost instantly unemployable. And even if you’re now retired, it’s almost certainly not worth the hassle it will cause.
If someone has enough of a grudge to publicly complain then the suing by the company will only add to their complaint and, if anything, might be an incentive for them to publicly complain.
I don't think this is true. In my experience, the employer sees the non-disparagement clause as mostly unimportant[1]. The reason they compensate you is your agreement not to sue.
[1] Specifically, when I have asked to remove it, they have done so without any back-and-forth and without asking for anything in return.
I was paid off after a senior member of staff at a company I worked at did something he should not have (not sexual). I'd rather have had the pay off. No one forced me to sign anything. And I would have been worse off getting "justice" than a cheque...
I don't know that it's meant to be 100% for every employee's benefit. Disallowing companies from paying off their employees not to talk cuts off a means that companies have to hide wrongdoing.
After paying you off, the senior member of staff could do exactly the same thing to your replacement who, without the context of your experience, might assume that no one knew what was happening to/around them (when everyone around them knows) and/or that there was no recourse (although the company was fearful enough of you to pay you off.)
Laws often have to make this tradeoff between an individual's rights or an individual's benefit, and what's good for society as a whole.
Sure, it may be very convenient for you if you can toss garbage out your car's window instead of having to spend time carrying it around and finding a trash can, but if everyone tossed garbage from their vehicles, society would certainly not be a better place.
Similarly, it is better if companies don't attach a price tag to such illegal (I assume?) behavior because, well, even if you individually would rather be paid off, normalizing that practice will probably be worse for society. At least that's the value call being made here.
Instead of thinking "Well, I personally would rather have this", you can instead think "Would I like to live in a society that condones and expresses these values".
I, personally, would rather frame things in terms of society, not individuals. I do not think victims have an infinite right to redress.
"it prevents the actual current victim getting paid."
No, it doesn't. It just prevents a company from paying them and requiring them to sign away labor law rights as a condition of payment. And it would be in the company's best interest to do so as it changes the story from "X did this to me and Y company did nothing to take care of me" to "X did this, but the company made sure I was OK".
If a company chooses to stop doing this, it is their decision and not a result of the law.
I don't get what happens if you refuse to sign one of these when you're laid off. Aren't employers still required to offer severance under laws like the WARN act? It's not like they can fire you for not signing...
Typically with a tech company where they are concerned about a person walking out with IP the company will instead put the employee on garden leave for the duration.
It would also be completely within the WARN act to say "you are going to be laid off on April 24th, however you are required to show up for the next 60 days and do knowledge transfer to the rest of the team." And then on April 24th, you sign that you acknowledge that you've been let go, you hand in your badge, get your final paycheck and payout of any accrued vacation and then walk out the door and that's it - no other payments.
Employers have never been required to offer severance.
> There is no legal requirement under California law that employers provide severance pay to an employee upon termination of employment.
---
Typically, the stuff you sign when you leave is a payment contingent upon a promise not to cause future problems for the company. Don't disparage them, don't threaten to sue them for certain things relating to being discharged from the company.
If you don't sign it - you don't get the severance pay.
Correct, the max penalty under WARN act is 60 days pay. I fell into the first bucket you mentioned. I was on the payroll for 60 days, but had all access to systems disabled and was expected to do no work, though the company reserved the right to call on me should the need arise.
I am curious to see how this works, since my severance was accelerated stock vesting, and was given in return for agreeing to the non-disclosure and non-disparagement clauses. If those aren't available any more, I wonder if companies will be less inclined to offer severance since they get less in return.
Acceleration of vesting is also potentially a legal protection against litigation claiming an employee was terminated to prevent vesting. It's often easier to just let someone vest than to prove you are not trying to get out of the grant.
I'm sure. I also missed out on the second half of my joining bonus that would have actually been worth more due to the absolute cratering of the company stock price.
Maybe if they're offering additional benefits beyond the legal requirements, ie longer severance, they could threaten to withhold those? I guess what some companies were doing is saying "ok, we give you 4 months severance, but you agree to waive X, Y, and Z rights".
The majority of filming that happens in Colorado and New Mexico is done by crews that belong to IATSE Union locals. Acted in by SAG-AFTRA members and written and directed by DGA and WGA members. You don’t know what you are talking about. Productions go to these states because they offer tax incentives not because they offer non-union labor.
Political: relating to the ideas or strategies of a particular party or group in politics.
> anything you don't like (or is unlike you) is "political".
As I understand the term, this is correct. Politics are a way of setting standards for parties who wish to negotiate resolution to disagreements in communities, or am I off base here?
As the term is used in this context, "political" is synonymous with "partisan". That is, rather than resolving specific disagreements within communities, it invokes the entire web of alliances and tradeoffs that bind members of a party together. The negotiation is tied to all of the other negotiations that people hold with each other, even if it's completely unrelated to the matter at hand, and independent of people's actual feelings about the matter.
One is accused of "playing politics" when one's goals are perceived as applying to their longer-term partisan influences rather than this issue. They may, for example, play to one specific constituency who feels very strongly, even if the other constituencies feel the opposite way. Those other constituencies are assumed to not place as high a priority on it, and so tolerate going against their preferences.
Organized labor exists to allow workers to use their collective power to negotiate with the company. This power can be used to negotiate anything. For example, it's entirely possible for a union to negotiate for personal offices instead of open spaces, for TDD, for proper Agile instead of Scrum, or anything else its members care about.
Programmer culture is full of complaints about what management is forcing on the organization. Unions are the only realistic solution for those things. There's no reason programmer unions would have to be exactly like auto worker unions or actor unions.
> it's entirely possible for a union to negotiate for personal offices instead of open spaces, for TDD, for proper Agile instead of Scrum, or anything else its members care about.
And this is why you can’t move your own table or plug in a power strip at tradeshows. The unions have a detailed contract about who does what when.
Imagine the work rules around scrum and agile, created by a committee of passionate union organizers negotiating with hostile managers. And imagine there is nothing you can do about them but hope your views prevail at the next union election.
And that’s why a protective gear/net is mandatory (not talking about US) for construction workers here where I live, and the employer cannot cut costs there or let one “brave” worker to go without those protections.
If you think your views won’t prevail in Union election, wait until you see how employers treat your expense generating views.
I used to work tradeshows for General Motors. Many of those rules are requirements by fire marshals. Those requirements were paid for by dead bodies and burned buildings. Auto shows are a lot safer since all the batteries are disconnected and fuel tanks emptied.
Examples:
cars on deck short out due to salt water spray:
> Imagine the work rules around scrum and agile, created by a committee of passionate union organizers negotiating with hostile managers. And imagine there is nothing you can do about them but hope your views prevail at the next union election.
Imagine the work rules around scrum and agile, created by a committee of passionate managers negotiating with no one. And imagine there is nothing you can do about them but hope quit.
No unions in my software job yet I'm also not allowed do heavy lifting or to relocate equipment like monitors. The insurance company also insists on such things, not just unions
> And this is why you can’t move your own table or plug in a power strip at tradeshows. The unions have a detailed contract about who does what when
I think that's probably over simplification, tradeshows have things like planning for fires, keeping escape routes clear, making sure power supply isn't over taxed. Maybe you can blame the unions for protecting their members because someone had to say they set up everything in compliance, and if you come along and change something, and disaster happens, prob the guy who set things up will get blamed.
>And this is why you can’t move your own table or plug in a power strip at tradeshows. The unions have a detailed contract about who does what when.
Aside from safety reasons others have mentioned, these rules could also be meant to prevent replacement with other staff. For example, if a union negotiated a better salary & benefits deal for maintenance workers, the company couldn't fire one and then ask other employees to "Help out maintenance some of the day, because they're short-staffed."
You don't seem to understand how unions work. They insert extra layers of management in between the workers (developers) and the management. They create a go-between where all negotiations must be done with the union rather than managers interacting directly with developers. This slows down development and would actively make the lives of developers worse by having to deal with a bunch of things they don't want to rather than just being able to live life in peace and code.
As a software engineer/developer if I ever see coworkers trying to unionize I promise to try to work against them and prevent any such activities from continuing. It'd ruin the company I work at and would force me to have to leave for a new job.
It's you who don't understand how unions work - you don't choose your managers. You choose your union reps. Your managers are strictly interested in the good of the business, at any cost to you (structurally - individual managers may care about their employees, but that is a weakness in the organization) - the union represents your interests, at least to the extent that a democratic process can achieve that.
The union is there to equalize this relationship. Developers have to deal with a bunch of things they don't want other than live life in peace and code either way. With a union, they have some say in what that something is. Without a union, it's entirely up to the shareholders and pointy haired managers.
Now, if you're in a position where you are 100% critical to the business, than sure, the union may actually reduce your personal negotiation power. But the vast majority of programmers have more or less 0 negotiating power without a union. They take what is offered or leave, regardless of how much they enjoy their work or co-workers.
Managers are typically excluded from being members of a worker's union. Also, the role of a union rep is very different from the role of a manager.
> And said extra managers are strictly interested in the good of the union.
Since they are democratically elected, they are interested in the good of their constituents. If you don't think your union rep has your best interests at heart, you can choose another one at the next election. If you don't like your manager, you can quit.
> they are interested in the good of their constituents.
Supposedly that's the case for politicians as well, and we all know how well that works out.
Also I think you misunderstood my previous comment. I was referring to the union people as "managers" in quotes. As they're create an extra layer of go-between between us and the managers.
This extra layer of management is the price to pay for a little representation within the workplace. It is deeply imperfect, sure, and I wish companies were workplace democracies instead of relying on external organisations, but its infinitively better than no representation at all.
Besides, negociations being done through unions rather than directly with managers is a feature, not a bug, because it reequilibrate power dynamics. It's harder to underpay someone when there is a salary grid known to everybody.
This is just a caricature of what labor unions are. It's as if I was saying that company hierarchies are useless because they introduce a level of management and workers would be better off if they could negotiate directly with the CEO or even the shareholders!
Companies are unions of shareholders, getting together to achieve more than what they could do if they were alone. Labor unions works on exactly the same principle. Please have a look at labor history and see what unions where able to do for workers.
Are labor unions perfect with no corruption, no mismanagement, no abuse. Of course not, it's a human organization. Just like companies, governments, municipalities or any other group or people. But it's by participating, keeping informed and holding the people in charge accountable that you work it out. Realizing this is part of growing up.
I don't think I'd join or support a software union even though I think unions are a good idea in general. Software engineering is one of the few careers where the market has actually forced a decent balance between labor and management.
Realistically, unionized software engineers would make hilariously less money than FAANG people are making right now. At least, that's what I'd assume from looking at how things work in Europe.
All right, to steel-man your argument: Honestly, I think even your lowest-brow code camp copy-paste monkey is in a pretty good spot nowadays in the USA. It's easy to make a six figure income just churning out CRUD apps for 40 hours a week. Any company that won't pay up gets disrupted into oblivion by ones that will. (Or it just clunks along forever with a bunch of underpaid workers churning out low quality crap, like what we see from government/hospital systems. Either way, everything's fine.)
What do you want out of a software union?
(Keeping in mind that we can comfortably afford and demand basically any perk you can imagine.)
> This slows down development and would actively make the lives of developers worse by having to deal with a bunch of things they don't want to rather than just being able to live life in peace and code.
All professions have a union of some sort that police both the members and the employers - lawyers, doctors ...
It works for them, why wouldn't it work for developers? Are developers not as professional as lawyers and doctors?
> All professions have a union of some sort that police both the members and the employers - lawyers, doctors ...
No, they don't. Professional societies aren't unions. They don't police anything, governments do; the societies only provide input to the rulesmaking process for the profession. They also have no power to represent their members in employment-related matters like a union. They do provide some union-like services to their members, but it's the fringe stuff like continuing education to maintain licenses.
Also, these exist for software engineers (ACM and IEEE), but the industry (at least the Valley-centric part) largely ignores them as membership organizations and resist any attempt to produce professional regulations similar to what those other professions have.
Meanwhile, in Denmark, I'm a member of an engineering / IT union called IDA.
They offer detailed salary statistics, with breakdowns by role, experience, education, etc. - bringing these into negotiations have already paid for my union dues like 100x. Wages aren't about the absolute amount; they're about what the market rates are for your skills, which have nothing to do with arbitrary thresholds like $100k+.
They also offer contract / offer review to help you understand if an offer is legal and fair. They have social events, workshops, wine clubs (!), etc. They'll provide advice on continuing education paths and what's likely to be relevant. When layoffs started, they sent out special newsletters reminding people of legal severance minimums if you're laid off, and of your rights when you suddenly find yourself handling extra responsibilities if you weren't. (Here that can be considered a constructive change in role, which can force a re-negotiation of salary upwards.)
Since unions are well established here, there's no risk to joining one; practically everyone does.
For all this (and other things), I pay...about $15/mo equivalent. Pretty worth it, IMHO.
Organizing is also for working conditions which are often not great in software. E.g. unpaid overtime, on-call requirements, unrealistic deadlines, poor performance assessment, etc.
Every person I personally know in the industry works less than 50 hour weeks. And often they go home and work on their own projects at home, in effect working a lot more.
Working on a hobby isn't the same as paid work. We don't sit here and say that folks going home and playing games are working. It is the same with side projects of any sort. These are hobbies. That they happen to line up with something you do for paid work is just coincidence. This is true even if you make money off of it from time to time.
Hobbies aren't work.
(Hobbies that have become your day job or are a significant portion of income are no longer hobbies)
You might like to read about the Writers Guild in Hollywood. Highly organized, high salaries far surpassing even that of tech, with graduates in the top percentiles coming into 500k/yr salaries fresh out of graduation, all union.
Yes when you can create a form of in-effect regulatory capture you can engage in monopolistic practices to gouge the customers via creating artificial scarcity. Movies continue to climb in costs.
None of that applies to software development which is a global phenomena.
Sorry, are you implying that filmmaking is somehow less universal than software engineering?
Many jobs are more difficult than hacking on Angular bs all day, it’s not like most devs implicitly deserve the high pay they enjoy here in the States.
Not to mention, most people are far more likely to pay for a movie than for a piece of software, excluding video games.
Is that why tv and movies in the USA are often so hilariously poorly written? That there's an elite cabal of writers and it's impossible to join based on the merits of your writing?
Btw I can assure you that there are plenty of legit HN users from the US among the ones making the arguments you're talking about.
Also, the implied assumption in your comment that HN is an American site is not a good one—HN is highly international. Last I checked, about 50% of the community was posting from US IP addresses. Users in other countries are just as much part of the community and just as welcome here.
Just a note. The NLRB rules on Labor Law ie Union Rules. This is pretty narrow in that you can’t be asked to waive rights that the NLRB covers which are primarily around your rights to organize and the rules that govern those processes. Not employment rights in general.
For the large majority of HN who are not organized (or being organized) this wouldn’t impact them at all.
