The intersection of Internet shit-storms and non-disparagement agreements

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Having watched recent events unfold, I'm beginning to wonder what effect employment contracts are having on how companies and their employees respond to catastrophic reputation-loss events. A certain well known open-source company is undergoing this right now, which is why I'm thinking about it. Because they're big enough to have had lawyers go over their employment agreements for more than just intellectual property clauses, I'm guessing it's also picked up a few other goodies along the way.

The Setup

  1. $Company does something.
  2. $Activists say, "Hey, that's bullshit."
  3. $Supporters say, "Dude, not cool."
  4. $Defenders say, "Hey, no biggie, eh?"

Steps 2-4 can happen in 30 minutes these days. At this point the news is still expanding. But now the interesting things start to happen. As the $Defenders and $Supporters+$Activists start hammering on each other in social media the ranks of both camps increase and at some point, somewhere a subset of $Employee chimes in and after a while maybe $Company.Officer actually gives an official statement. By now the shit-storm is well and truly engaged.

Free Speech Means Freedom From Arrest (but not binding contracts between private parties)

Bloggers like me have known for over a decade now that mouthing off about one's employer is a great way to get fired. Some companies actually have clauses in their employment contracts that read, in effect:

You will only talk about the $Company in glowing terms. Or else.

The language is actually written like, "under no circumstances will you do or say anything that will reflect negatively on the company," but this works for now. This is called a non-disparagement clause, and is perfectly legal. What's more, it's common practice to use severance agreements to bind outgoing employees to those same clauses (if they weren't already bound by the employment agreement) in perpetuity to ensure that the now-ex employee doesn't mouth off about their old employer; less of a risk for voluntary departures, more of one for involuntary ones.

Your free speech has a price. Maybe it's $10K. Or $20K. $30K? $30K and 4 months health-insurance coverage to carry you to your next position? Okay, $75K, 5 months, and 10K shares of preferred stock. Have a nice life.

Shit-storm Meteorology

So you're in the $Activist+$Supporter camp and $Company is being strangely silent on the topic of what bonehead thing they did. The only people from the company talking about the thing are firmly in the $Defender camp, which only cements your opinion that they're just not getting it and are hopelessly out of touch.

What if you're a $Supporter that is also $Employee? If you have a non-disparagement agreement in your contract voicing that opinion is to risk your job and future employability. Unless you're also in $Company.Officer, speaking up is a very bad idea no matter how loudly the $Activists are crying for redress (in fact, speaking up even if you're a $Defender is a bad idea, but it's less likely to pothole your career-path). The Cyclone of Suck accelerates.

Stopping the Cyclone

It is possible to avoid the cyclone, or at least minimize it. It requires a fast response from $Corporate.Officer in a way that even the $Activists can recognize as meaningful. This is a hard step to take since it usually requires admitting fault (and thus, liability) which is why the first statement is almost always something like...

There there, we're not evil. We promise. We do good things too.

...and is lambasted by the $Activists as not addressing the problem. This is likely to accelerate the cyclone, not spin it down.

Another way to slow it down requires hard choices made by $Supporters who are also $Employees, by voluntarily severing employment due to whatever happened, refusing a severance agreement (and thus accept a period of no pay-check or even unemployment benefits), and saying why they left. It works better if more than one make this grand flounce.


This is just a theory of mine for how "never trash-talk your employer" clauses intersect with online debate. When I see people getting ever louder in indignation that some company or organization is remaining silent on some contentious topic, I do wonder if that's because the very people who would give the desired response have been preemptively legally gagged.

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