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

The problem is that the cost of finding out that a clause won’t stick can be ruinous, to the extent that for the vast majority of people with such clauses will be silenced.

That’s why, if such clauses are becoming common, it’s important to have labour law make it illegal to even ask the employee to sign such a clause.


Isn’t this what unions are for? I dunno how it works over there (horribly, I assume), but here even though my employer doesn’t recognise my union, if they pull any illegal shit, the union has my back vis a vis paying for lawyers to fight them. It’s what you pay your dues for.


I’m no contract law expert; but my understanding is that the US has pretty similar contract law theory (clauses can’t be unconscionable, contracts of adhesion are invalid, a meeting of minds is supposed to be represented, etc.); but the judicial interpretation of what exactly is ‘unconscionable’, how unequal the parties have to be before you have a contract of adhesion, whether a clickwrap EULA is actually a legitimate contracting interaction, etc. has…taken an ugly turn; and (as with any jurisdiction where severability is allowed) it costs almost nothing and carries little risk to throw shit into the contract and see if it sticks.

It’s not so much that we have any specific mustache-twirling-evil contract law available that other jurisdictions don’t(though the details vary by state, so it’s a bit tricky to talk about ‘America’ as one regulatory entity); but that the boundaries of various aspects of relatively standard contract law have evolved by interpretation to allow some fairly egregious results.


Gosh, haven’t seen that photo in a while. Thanks for using it, Cory!

We had one that said any bonus had to be returned to the company, if we left said company within 6 months or receiving the bonus. They said something to the effect that it was to incentivize future performance, so if there was no future performance…

I’m pretty sure it would not have held up in court, but moot point, as the company imploded to a soundtrack of lost contracts, missed payments, and time served (Federal).


What successful business model says to give away bonuses before they’re earned?

Oh. Nevermind.


Well, that’s not quite what they meant, either, but it did come across that way on paper – what happened was we deployed a big software build, and the lead developer received a bonus. He then put in his notice and moved on. The owners took any resignation as a personal affront, but in this case they had also given the guy more money. So thereafter, a bonus was an incentive toward future good work based on past good performance.

At an earlier job (EDIT: different company), they sent a guy off for training (out-of-state) and he landed an interview while he was there. He came back and gave his two weeks’ notice. At that point they announced they would never pay for training again, for anyone, but it didn’t last… (Not long afterward, I wound up with that guy’s job, and eventually got the same training he did. I didn’t leave until almost 8 years later, when they laid me off.)

In all fairness, not all of their problems were due to their own (piss) poor decisions. At this far remove I’d say my net experience there was “good.”


That’s absolutely true, but it’s also possible to make all sorts of claims in court to try to get out of a contract. Such as it being made in bad faith, the signator lacking authority, and so forth. If it’s worth it to them (for small stuff, it won’t be) you can bet their lawyers will give it a shot and hope for a friendly judge.

The previous poster was concerned about enforceability, and making it obvious that both parties know what they’re signing is one way to make the contract more obviously solid.

Either way, if you strike out the parts that give up your rights the other party will have a hell of a time trying to argue that you signed them away, so go for it.

A coerced contract is held as non-binding and yeah denying your employee their severance pay unless they sign is a form of coercion.


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