FWIW I agree about not enforcing non disparagement clauses but legally that not the world we live in.
That's not how it works at most companies.
It's a free market! If she didn't like the offer, she could've just gotten herself fired from some other company instead. /s
If non disparagement clauses were illegal then perhaps the severance amounts would be smaller since there’s now much less value to the company.
If someone gives you the option to accept $ to sign a contract agreeing not talk about something that is legal but morally bad, and you say yes, then talk about the thing, you will correctly be losing the lawsuit, no matter how bad the thing is.
Having a leverage to force an NDA is not immoral, but breaking the NDA (no matter how unfair the situation that led to it being signed was) is immoral.
Got it.
Did I miss the part where a gun was held to their head?
If I offer you money to eat a turd, is it your view that you are being forced to eat the turd?
She earned it.
A company's reputation when it comes to severance is a part of compensation negotiations and decisions whether to accept the offer to work there.
She got a high level job where such a severance is expected. If it weren't, they'd struggle to find anyone to fill that job.
The severance wasn't contingent on her past. Anyone else holding that job would've gotten a difference.
A male probably would've gotten a larger one, for that matter.
And NDAs and similar, with their entire purpose being restricting speech, should also be restricted pretty strongly.
Governments could just not help them do that.
Given that this runs tangential with whistleblowing and free speech, this is exactly where I want a government to draw a line.
If it's about whistleblowing and doing the right thing, why not just refuse the money?
Arguably, its more like non-compete agreements but with the added fact that state enforcement of the agreements is in tension with freedom of speech.
But, you know, lots of jurisdictions sharply restrict enforceability of non-competes, too.
Read about record contracts. Prince spoke extensively about his restrictive contracts.
Plenty of contracts benefit both parties but are bad for society as a whole, and if the government pre-signals which sorts of those contracts it will refuse to enforce, this is good for society.
This doesn’t limit the Feds. Also, a state can prohibit non-compete. Etc. Basically, the freedom to enter into a contract is not one of the four corndogs of freedom.
The only sensible way to approach libertarianism is to qualitatively evaluate individual liberty. And being prohibited from speaking 8 years after the fact, especially when there is a compelling public interest, is in no way equitable. If they want her continued silence, they should have to buy that on the order of year to year.
If you're making an argument that the right to contract should be unlimited between individuals (and perhaps unlimited between legal entities), but should be limited when made between individuals and artificial legal entities, that would be an interesting framing to explore. But afaik it's not really a popular one.
(although I don't know that such a framework would actually invalidate what I said, especially for autocratic totalitarian states - each citizen of North Korea could just as easily be said to have a contract with Kim Jong Un himself)
I don't see how it's principled to legally swear to not do something, then turn around and do it anyways. She's an adult, she has agency, and she chose to enter that contract.
It's also not like we're talking about a legal whistleblower here. That act DOES (and should) have a lot of legal protections. This is someone writing a book that they personally profit from.
One of the most pressing problems of our time is that these large corporations, on balance, have too much power compared to the electorate.
> We are literally discussing that this act could easily be stopped by legislation. Doesn’t that imply they have less power than the electorate?
Not when they have full time people dedicated to lobbying the legislation. That's the issue on why things move so slow or halt when it comes to really voting on such policy.
Corporations will violate contracts all the time as a cost of business if the cost of the violation is less than the benefit gained.
As a society (more so here in the UK than in the US, I'll grant) we have laws governing what one party may demand of the other. They don't prevent a genuine meeting of the minds, because enforcement of a contract will only be an issue if at least one party doesn't follow through. But they do limit the ability of the company to impose sanctions beyond a point.
One limitation in the UK is that penalty clauses that are "private fines", like this one, must be based on the actual damage caused.
In this case, as in the non-compete case, I would say that if a company wants to continue to influence what someone does, they should continue to pay them.