Consideration is something of value given by a promissor to a promisee in exchange for something of value given by a promisee to a promissor. Typically, the thing of value is a payment, although it may be an act, or forbearance to act.
Paying you not to speak is no more an attempt to dissolve your human agency than paying you to speak. Assuming you have nothing disparaging to say, not agreeing is foolish.
> Assuming you have nothing disparaging to say, not agreeing is foolish.
That sounds an awful lot like "If you've done nothing wrong, you have nothing to fear", a statement which I know is very much false.
What you think is disparaging may be very different from what your employer thinks is disparaging. By signing away your rights using ill-defined and imprecise language, you are only opening yourself up to potential legal troubles later.
I could flip your final statement on its head: assuming you don't desperately need the severance payment, agreeing is foolish.
'That sounds an awful lot like "If you've done nothing wrong, you have nothing to fear"'
Then your pattern matcher is giving you a false hit.
Your statement is about a government imposing unreasonable searches and seizure of you and your personal effects for the illusion of societal security.
The subject under discussion is about exchanging value for value in a voluntary transaction with you and a non-monopolistic employer.
The whole issue of "if you have nothing to hide then you wouldn't mind the government looking into x" is a question of basic human rights. It's a question of whether or not the government has the right to invade your privacy even when there is no suspicion of wrongdoing. In a society that believes in the "nothing to hide" principle, citizens have no choices. They have no rights to privacy. They are trapped.
The "if you have nothing disparaging to say, don't worry about it" is a question of making a choice. If you choose to be able to disparage your employer in the future, don't take the severance. It would be your choice. If you choose to be careful of what you say, then take the money.
Monopoly affects whether or not you have choices in a society. The government is a monopoly, a monopoly that has the right to physically force you into compliance. Because of that simple fact, everything the government does or is allowed to do requires much greater scrutiny.
Maybe you don't have anything disparaging to say now.
Maybe it comes out that your ex-employer was engaged in fraud. When you hear the news on social media you say "wow, Joe in accounting always did strike me as funny." You didn't mean it as disparaging. But the company does.
Your former employer (and anyone else you have done significant business with) can always find some flimsy basis for a lawsuit that will cost you several dozens of sleepless nights and $10k-$20k in lawyers fees, before it is thrown out by the judge.
What is stopping the other guy is they are not pissed off enough to throw $50k-$100k in the toilet for the lawyers fees and distraction to punish you unjustly.
Not signing does not actually protect you from baseless suits, if you run your mouth.
> Your former employer (and anyone else you have done significant business with) can always find some flimsy basis for a lawsuit that will cost you several dozens of sleepless nights and $10k-$20k in lawyers fees, before it is thrown out by the judge.
I think this actually cuts both ways, since companies usually have deep pockets and are responsible to investors. This is the only reason companies offer severance in the first place -- it's cheaper than dealing with the lawsuits.
> Assuming you have nothing disparaging to say, not agreeing is foolish
The article stated the author would have to give up his lifetime right to make "any negative or disparaging statements (orally or in writing) about the Company or its stockholders, directors, officers, employees, products, services or business practices". That's a huge thing. Let's imagine the company you worked for starts selling organs of little orphans for transplant. You are not allowed to criticize them for that. Let's say they start a fracking operation that contaminates the water of millions of people. Or irresponsibly build a nuclear reactor that melts down a week later. Imagine one of the stockholders is Carl Icahn. You'll never be able to criticize him again. Or Donald Trump. Can you imagine never being able to make fun of his hair? Imagine then your cable company buys one share of the company you worked for. Now you can't criticize them if your TV goes out because they are a shareholder. Imagine your ex-wife learns about your contract and buys one share.
I could be wrong but I think what you'll find is that a court would not uphold that agreement any further than the original amount of severance pay was worth.
That would be tantamount to signing a release to play in a softball league and then one of the other players attacks you with a bat. So, you can't get your hospital bills covered, now?
If you sign the agreement and then renege, it's not like they can sue you for a million dollars in damages if your "disparaging" remarks are true.
> it's not like they can sue you for a million dollars in damages if your "disparaging" remarks are true.
They can sue you for slander/libel with or without you having entered into the severance agreement. If we're talking about getting sued for entering and then breaking the agreement, we're probably not talking about "millions of dollars" but rather whatever the contract specifies the penalty for breaking the contract would be (and this is still up to a court to decide what's actually enforceable).
You can make fun on Donald Trump's hair or criticize a product from the consumer end (the cable company example) after signing non-disparagement.
What it covers is what you say about the company in the context (which can be broadly defined) of your being an ex-employee. If you say, "I worked at Time Warner Cable and it was run by idiots", that violates nondisparagement, because you're saying it as an insider. If you criticize the product not under your real name, or in private while not representing yourself as an ex-employee, you're probably fine.
Maybe you don't have anything disparaging to say right now. But that may change dramatically in the future.
Crass example, let's say you worked at a bank, parted on good terms, signed such an agreement. A few months later it turned out the bank had been laundering billions of dollars of drug money. This has no affect on the agreement you signed. Still got nothing disparaging to say?
Are you really asserting that employers who don't ask leavers to sign gag-clauses usually pay zero severance??
On the contrary, I assert that severance pay is normal with or without the gag-clause. So the employer has put the "value" of signing agreement at zero.
Severance payments are not legally required in most U.S. states. The company might usually make a severance payment (because ex-employees usually sign whatever the company asks them to), but if you don't sign their agreement, they won't give you a severance payment. So the cost of not signing is whatever the severance was worth.
You are assiduously avoiding my point. I said nothing about any legal requirement to severance pay. I asked you about what is usual. If there is no difference between the usual severance pay from gag- and no-gag-employers, then employers value the gag-clause at zero.
You are correct -- if the employer was providing nothing more than their existing legal obligation, there was no consideration on there part, and thus no contract. The point of course, then, is that signing gave away nothing.
Consideration is something of value given by a promissor to a promisee in exchange for something of value given by a promisee to a promissor. Typically, the thing of value is a payment, although it may be an act, or forbearance to act.
Paying you not to speak is no more an attempt to dissolve your human agency than paying you to speak. Assuming you have nothing disparaging to say, not agreeing is foolish.