I think non-disparagement agreements (when two sides agree to not say bad things about each other) are a bit silly. Any former employee who has enough sway with customers, media, and other employees to make an employer think it needs a non-disparagement agreement will either: (a) have enough of a stake in the continued success of the former employer to know better than to talk it down, (b) be senior enough in the industry to know that trashing a fomer employer will be counter-productive career-wise, or (c) smart enough to end run the clause anyway. There are some limited cases where they might make sense - employee has a history of bad behavior and no future upside in the entity, for instance - but in general, they paint a former employer as paranoid and insecure. Good advice from Charles Green:
Make alumni of the people who leave. Your college didn’t go all resentful on you when you graduated; they didn’t make you sign a non-compete about getting a master's from another university. And when your college phones you to contribute to the fund years later, you still do! (And if you don’t, it’s because your college needs to read this blog). Think of people who leave as graduating advocates of your company—not as disloyal double agents.
Although I think these agreements are an odd business practice, I've been looking into their legal foundation. I've tagged some of the articles to show up in the "Interesting Links" in the sidebar. (To see more or my continuing research, after the links of the sidebar move, you can see my del.icio.us non-disparagement tag.) So far, I haven't found much - non-disparagement clauses are vague, sometimes enforceable, tough to prove damages, and usually treated differently than defamation (which means truth may not be a defense). Lots of people gripe about how they impact First Amendment rights, but that only matters if the government is involved. Their vagueness and damages difficulty just decreases the business justification further.
Even if "non-disparagement" itself is unclear, the surrounding clauses of an agreement may not be. Most agreements specify who is not allowed to disparage (one or both parties), who or what they're not allowed to disparage (the people involved, a book, a corporate entity), and to whom they're not allowed to disparage (employees, customers, prospects, etc.). As usual, the broader the clause, the more difficult it will be to enforce.
Vague, tough to enforce, easy to end run, paints the party asking for it as insecure and paranoid. Why bother?
Related Tags: compensation, law, non-disparagement
1 comments:
I concur! Your ideas touch on something important. Employees generally feel the need to be secretive about seeking alternative employment for fear of retribution or discrimination at the current employer. This is ridiculous.
The first thing I tell my employees is that "you don't have to be happy here, but you should be happy at work - or you're wasting a good part of your life".
I advise them that if they want to look for another job for any reason, the color of their chair is wrong, the culture isn't right, or they just plain don't like working for me - they can tell me and I will assist them in their job search.
This establishes a trust between me and my team as I really do care about their well being. If I cannot improve their working situation, they know that they can look for something else. No need to have fake "doctor appts" for interviews. I can be a reference for them (how often do folks list their current manager as a reference?) which makes their search even easier.
Even if they are just dabbling in the "new job" market, it's perfectly acceptable. If my employees find something, I can help them move on. If they don't, no worries - they can stay right here. I don't believe there is an "us" and "them" in the work place.
The point is that folks should treat their coworkers like trusted friends, not potential enemies.
Another good post John.
(wish I had found your blog sooner and wish even more that I had known you when I was at WT!)
Post a Comment