Last month, the National Labor Relations Board ruled that employers can no longer include non-disparagement clauses in severance agreements with employees. Non-disparagement agreements barred laid off or terminated employees from sharing negative thoughts or experiences about their former employers, in exchange for a few months’ salary. If federal courts uphold the NLRB’s decision, it would effectively invalidate these clauses from severance agreements.
While this may seem like a dry contractual legal change, it actually materially impacts the way we can communicate about our bosses, our financial compensation, and our actual work duties in the public eye. Transparency into people’s experiences and opinions of work, which previously may have been deemed too counterproductive to capitalism to expose, could now, as a result of this rule change, become more normalized outside of informal whisper networks or happy hour gossip sessions.
Non-disparagement clauses have long been a staple of severance contracts that employees sign when laid off or departing a company on less than friendly terms. The agreement has historically been: live off of this money for a couple of months to move on–but you can’t say anything critical about the company or its employees. After someone signed such an agreement, they were not technically allowed to publicize or share an opinion about, say, a former manager’s behavior or the terms of their layoff. If they did, and they were found out, the employer had legal recourse to claw back the severance payment.
The NLRB’s rule comes at a time when people are taking to TikTok and other social media platforms to air their work experiences. As we see a deluge of layoffs in the tech industry and beyond, people are “vlogging” their feelings about severance packages in an attempt to form a community, feel less alone, and perhaps pressure multi-billion dollar corporations to be more generous in what they offer workers. But while these sorts of videos can rack up millions of views, they fly in the face of a top-down work culture that can be quick to categorize an employee who speaks up after exiting as some maladjusted person or a low performer on a scorched-earth campaign.
All of this has exposed a tension between a social media culture that rewards authenticity, honesty, and candor–and a corporate culture that requires a level of conformity and deters self-expression about working conditions. The contradiction here is that even if we do not partake in an authentic display of experience by bringing work stories forward to social media or the press ourselves, we remain avid voyeurs and curious consumers of news reports and social media posts that showcase the work experiences of others.
While it’s not impossible that an exiting employee could embellish a story or speak up just to rabble-rouse or scratch some revenge itch, the motivations for publicly criticizing or sharing stories about a former employer are far more varied than that.
People who share information could imagine prompting better salary or health insurance conditions for others at their company or in their industry. They could hope that their experience spoken out loud might lead to consequences for unchecked power abuses, like bullying or sexual misconduct. A public workplace story could also change the ways different generations, races, genders, or abilities of workers interact or understand each other’s personalities or work styles. And of course, a story told could further expose the hypocrisy or narcissism of powerful executives.
Sharing employment conditions publicly could even be beneficial to employers, even if painful in the short term. Employers view those who speak out as disgruntled snitches. In fact, they are the ones who prevent problems from festering. And, if a company truly is shifting towards a more cutthroat, competitive, or political culture, an honest public reckoning of this reality can ensure that employees, future or present, have that expectation.
Our company Lioness helps workers and whistleblowers decide whether and how to bring a story forward to the media–and we have seen signed severance agreements with non-disparagement clauses serve as a significant deterrent to someone speaking honestly with journalists or on social media.
It is not common for employers to sue someone for providing an anonymous or group submission to the media, especially when they know it would be terrible for their own optics–but the prospect of financial ruin for speaking up can cause too much anxiety for the potential storyteller. It’s more of a psychologically-driven decision, fueled by the understandable fear of financial peril.
In one case, some employees of a startup agreed to write anonymously about a layoff wave that they believed disproportionately impacted women, people of color, and pregnant workers. But they were petrified, to the point where they used alias email accounts to share relatively benign information.
Another former employee of a religious organization signed a severance agreement with a non-disparagement clause, and discovered his employer was spreading falsehoods about the terms of his exit. He wanted to set the record straight, but was afraid that the company would retaliate.
With the new rule change, the floodgates could open for more stories, less anonymity, and more transparency. It could bring corporate culture more in line with the public’s thirst for authenticity. And now with the world potentially watching, it could change the way employers behave behind closed doors, too.
Ariella Steinhorn and Amber Scorah are partners at Lioness.
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