I have worked at the same business for quite a while. Recently my employer has gotten some very bad press.
Now everyone in the office is being told to sign a “non-disclosure” agreement promising that we will never speak ill of the business either while we are working here or after we leave.
Do I have to sign this?
Dear Unhappy Employee:
- You absolutely do not need to sign this document.
- Further, you absolutely do need to sign this document.
Before I explain my seemingly-dichotomous advice, let’s explore what’s really going on and what you have been asked to sign: a document that has both “non-disclosure” and “non-disparagement” language.
The two are not usually synonymous except when you work for an employer so lousy that merely speaking about any employment experience there creates a negative inference to your listener.
After what you told me about where you work, I do believe that is the case.
After some particularly unfortunate publicity that caused your employer to sustain PR body blows to an already-faltering reputation, he is now trying to batten down the hatches to preserve what’s left of his business. You almost can’t blame him for attempting to use this maxi pad of an agreement to stanch a geyser of blood coming straight from the heart of the organization.
Unfortunately for your boss, that’s exactly what this agreement is: a meaningless, ineffective effort to cure a terminal business.
If the problem for your employer is word hitting the street about what it’s actually like to work there and his solution is to shove a non-disclosure agreement in the (remaining) employees’ faces, you can be damn sure that business won’t be around much longer.
Before I dazzle you with some legal information, please click here: I’m Not Your Lawyer, Silly!
That’s my disclaimer. I am not giving you legal advice. Do I make myself clear?
The NLRB: It Does More Than You Think!
The National Labor Relations Board, also known as the “NLRB” because I have carpal tunnel and want to limit my words, has more jurisdiction than most people realize. Even many of us smarty-pants lawyers think the NLRB only deals with the unionized workforce.
Not true! The NLRB’s “What We Do” statement is thus:
The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions (emphasis mine).
There has been much activity in this area as of late and the NLRB has started taking a very proactive stance when they think employers are trying to chill (not in a fun way) employees’ rights under Section 7 of the National Labor Relations Act (NLRA).
Here’s an interesting article written in 2006 on the rights of employees to blog about their employers. I know you won’t read it but I’ll link it anyway.
You do not have a copy of the proposed agreement yet. Instead, you have been warned it is coming down the pike. For that reason I cannot do a RobinRedline™ for you and point out all the reasons it was poorly drafted and unenforceable.
When you do receive the document, please do not forward it to me, either by sending it from a fake email account as I suspect you did this letter (or is your name really “Iworkforanasshole?”) or merely leaving it for me at the MAC concierge desk (local folks will understand this reference).
Here’s the thing about these types of agreements: they have to include “consideration” in order to be enforceable, and in some cases they won’t be enforceable even if they do include consideration.
What is consideration, you may ask?
Here’s a fancy definition:
It is a fundamental principle of contract law that in order to create a binding contract which the law will recognize and enforce, there must be an exchange of consideration between the parties.
Consideration is simply something of value received by a promisor from a promisee. It can take the form of a right, interest or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility, given, suffered or undertaken by the other .
If there is no consideration there is no contract; and if there is no contract, there is nothing upon or from which to found or create liability.
Here’s my definition:
If you want me to shut up, you better pay up. Nobody gets nothing for free in this world so if you want me to sign this agreement you better fork over some cash, asshole.
More eloquently put, if your boss wants the agreement to be both enforceable and pass the “smell test” (and I still don’t think it will) the least he has to do is give you something of value in exchange for your silence.
No, that “something of value” cannot be your continuing employment.
That’s usually true but especially when the continuing employment is akin to having your testicles punctured by a python and a bottle of Grey Goose shoved up your rectum every morning when you walk in the door.
Fun fact! A contract with no consideration is said to be “nudum pactum,” which sounds like forming an alliance while naked but actually just means an “empty” or “naked” (and therefore unenforceable) contract.
Sorry. I love contract law.
I said above you do not need to sign the agreement. Then I said you do. Here’s what I mean by that:
You are legally entitled to refuse to sign this contract, but if you refuse I promise you your employment will end soon, if not on the day you refuse to sign.
Your boss will fire you if you don’t sign it. That’s the bad news.
The good news is you can then sue him for wrongful termination! I’m not going any further on that subject but if you need an employment lawyer referral send me a note.
The other good news is if you choose to protect your job by signing the agreement, it is unenforceable and your boss would have to spend thousands in legal fees to attempt collection in the event a judge was drunk or high enough to find that contract valid.
I’m Sorry: Where’s My Advice?
- Look for another job immediately. The deck chairs are being rearranged on this Titanic of a company and the non-disclosure/non-disparagement agreement is the least of your problems.
- If you cannot afford to lose your job, sign the agreement.
- If you can afford to lose your job, loudly quit the moment it is placed in front of you. Stage a multi-employee walkout, Norma Rae style if
you will. Can I film it?
If your boss happens to read my blog (it’s very popular!) and purports to offer you consideration, give me a call or drop me a line and describe it to me.
Best of luck and please keep in touch.
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