It's getting harder and harder to use gag clauses to silence laid off workers in America


#1

[Read the post]


#2

I’ve seen people simply draw a line through a part of a contract they found objectionable. I don’t know how legally binding it is but it’s a simple way to say, “I refuse to accept this.” I have seen it used in business contracts and unless someone’s breathing down your neck while you’re signing it’s unlikely to be noticed.

Then there was the time my spouse did it to a form for a price quote on a car and the dealer nearly jumped over the table screaming at her that she couldn’t do that.

We didn’t buy a car from him.


#3

You can absolutely change a contract before signing it. That’s pretty much the very definition of a legal thing to do with a contract.

Obviously you should point out that you’re doing this and initial it, not to mention keep a copy of the final signed document.

The company can always try to get out of a contract in various ways, of course. But editing a contract before signing is 100% legal and appropriate.


#4


#5

You lost me right there. Scan,change, print the one page … then sign the document and return with the old page shredded.

It is their responsibility to read the documents they sign.


#6

A very, very simple fix to these kinds of abuses is to require, as a matter of law, that the “did your former employer require you to agree to nondisparagement at separation?” question (and others related, such as “were you replaced by an H1-B immigrant?”) to applications for unemployment insurance.

Contracts cannot require you to violate the law or public policy.


#7

The “severance pay contingent on signing” bit explains my recent “separation agreement”, which included both a nondisparagement clause and a gag order clause. I was only allowed to discuss the agreement with a lawyer and my spouse.

However, given that (a) I was voluntarily leaving to go to a better job, (b) my severance package was merely things that I had already earned and I don’t think they could legally withhold anyway, © it cannot restrict my rights if I don’t sign it, and (d) the date it was to be returned, signed, was after they were to direct-deposit my final paycheck (including accrued unused vacation time), I just never signed it.

In my case, I’m uncertain there was any “consideration” offered by my former employer (as I said, my remaining pay was already earned), so I’m uncertain if the “agreement” would be considered to be a legally binding contract anyway.


#8

I’ve had to modify my employment contracts to replace the “we own all work you produce while you are employed” clauses with “we own all work-related work…” clauses in most of the employment contracts I’ve signed. It always goes back to them to sign, and they’ve always signed, so I assume that they either never noticed or thought my change was reasonable.

And my wife’s contracts are often full of changes as the agent nixes this provision or that.

However, more seriously, I think this should be basic employment law. I can see severance vs. suing. I cannot see any justification for allowing companies to ask for employee silence under any circumstance.


#9

How is it even binding? Don’t you have even the concept of fair contract terms in the US? When one party is in so much more powerful a position than the other it seems to me that such terms are coercive. In the UK I think it would be hard for a company to make such a clause stick. IANAL etc., it would be interesting if some employment lawyers could chime in.


#10

Just because they aren’t enforceable doesn’t mean that companies will cease putting them in. After all, they work because of the fear they cause (people don’t want to fight a legion of corporate lawyers just after they got laid off), not because of the law.


#11

Sadly, I have to agree with you.


#12

Bingo. This is literally Contracts 101. AKA the “You can’t form a legal assassination, bribery, or prostitution contract” rule. Illegal contracts are worth less than the paper they’re printed on. Public policy problems are harder to defend in court, but generally forbidding you from reporting illegal behavior to the authorities falls into some pretty brightline law.


#13

Yup. We have a two year non compete clause (thou shalt not work in any hospital related to [hospital chain] or [competing hospital chain] which is supposedly unenforceable but no one wants to find out. Also there one has to give 6 mo notice before leaving. That, I’m going to fight.


#14

The last time someone tried to put me on a “won’t work in the industry” clause I struck the time limit and simply put in a "for as long as (company) continues to pay my retainer of (about 40% of salary.) If they want to keep me from working, they can pay for it.

The didn’t try to revise the contract, never paid the retainer, and I was working for another company two weeks later.


#15

Is there a legal standard for what counts as “disparagement”? I assume it is not like libel, where it matters if what you say is actually true or not.


#16

You have to be careful there isn’t a Severability clause in the contract, however, and most do take that precaution. If it’s included it means that if any part of the contract is illegal or unenforceable, the remainder of the contract still remains binding.


#17

Often however, the rest of the contract is to the person’s benefit (i.e. severance pay.) So if you report it to the authorities, whether you can report it to anyone else is kind of less important. But in general, if in doubt, ask a lawyer.


#18

It’s only fair - I’m sure they’d give you a six-month notice of termination.


#19

Oh, this one I know the answer to. Depends. I know, not very dramatic. But non-competes that would prevent you from working in your field for a long time are often not enforceable.

In NC, they’re limited in scope pretty vaguely but if I was a company trying to keep soon-to-be-former employees from working within, say, a 100 mile radius for a long period of time, I wouldn’t be hopeful of my chances.

In Oklahoma and North Dakota, they’re not enforceable at all. In California, it would be illegal for your employer to ask you to sign a non-compete.

I’m told they’re pretty tightly limited in Louisiana, Alabama, Florida, Oregon and Michigan.

Illinois’s AG (Lisa Madigan) is currently suing Jimmy John’s over a non-compete that would effectively prevent anyone who worked at a Jimmy John’s from working at most restaurants in the U.S. for two years after they leave Jimmy John’s. (In fairness to Jimmy John’s, they say they never intended for anyone outside of management to sign the agreement.)


#20

I’ve heard of non-compete clauses for people who take a buy-out or resign with a significant severance package (more than two weeks). However, I can’t imagine a non-compete clause if one is fired or you just decide to move on. And a hospital? That makes zero sense.