I am honestly confused with why everyone considers non-disparaging agreements bad in all contexts.
People often end up hating each other, eg sometimes bad break-ups happen. I do think that “I am not going to bad-mouth you, you’re not going to bad-mouth me” is a sensible fair thing to do that allows people a) move on with their lives without a fear of retaliation, b) allows more honest relationships when they work because you don’t have to be constantly collecting “evidence” for potential future defense?
And, the same way this makes sense in relationships, I see it making sense in employer-employee relationship?
There is a difference between not being allowed to do something, and simply choosing not to do it.
Furthermore, there is a difference between not being allowed to do something, and not being allowed to say that you are not allowed to do something. (I think the non-disparaging agreements mentioned in the debate also came with a clause that the person is not allowed to mention the existence of the agreement.)
I agree that it is sensible to move on and ignore the things that are small from the greater perspective of life, and are not going to happen again anyway. But there are exceptions, such as:
something unusually bad happened (e.g. domestic violence)
my friend wants to date the same person, and wants to check something with me
In the latter situation I still wouldn’t talk about small things (e.g. not doing dishes), but I might mention medium-sized things (e.g. cheating), especially if I was asked explicitly.
(There is no clear definition of “unusually bad”, so this depends on people being reasonable, which is often a very naive expectation, I know. But I still want people to be able to talk about their experiences of domestic violence. Maybe a better protocol would be to have an impartial third party who could be asked whether X is or isn’t unusually bad and therefore an exception from the usual rules. Also note that people can be unreasonable in both directions. Sometimes an angry ex believes that someone not doing dishes is the worst person ever. Sometimes a victim of domestic violence believes that they deserved it.)
I might decide not to answer some questions, but that is not the same as lying. For example, if my friend asks “did your ex ever cheat on you?” and the true answer happens to be “yes”, I might say “I don’t talk about my previous relationships”, or I might say “yes”, but I wouldn’t say “no”.
And that is exactly the problem with legal agreements that not only would prevent me from saying “yes”, but also from saying “you know, I am legally not allowed to comment on this”, so my only legal options would be to say “no” or to somehow distract my friend from the fact that I have never answered the question.
I’ve only been in IP / anticompetitive NDA situations at any point in my career. The idea that some NDAs want to oblige me to glomarize is rather horrifying. When you have IP reasons for NDA of course you say “I’m not getting in the weeds here for NDA reasons”, it is a literal type error in my social compiler for me to even imagine being clever or savvy about this.
Yep, also seems horrifying to me, which is why I had such a strong reaction to Wave’s severance agreements. Luckily these things are no longer enforceable.
Well, there is a strict difference between “Sorry, I can’t discuss this topic, I am under a strict NDA” vs sharing details of the contract you signed. Yes, I am aware that the content of contracts usually is protected by confidentiality, but not necessary the very existence of them.
The existence of the confidentiality and non-disparagement clause is usually covered by confidentiality. This is relatively common practice, because ominously going around saying that you have signed a non-disparagement-clause is often as effective at harming the reputation of a company as going into the details.
This was also the case in the wave severance agreements.
I suspect the crux here is that it seems immature to me to spend lots of energy to keep retaliating after a bad break-up. Rather than “let us agree to keep it a secret what happened” I’d say “let us agree to not act in a malicious or petty way after we’ve broken up”.
Relatedly if it gets to the point where you “hate” your partner you should have already left earlier and it is your responsibility to have not let it get that far. (Or alternatively they did something surprising and very bad and this is precisely the sort of info that other people would benefit from knowing, and it’s wrong to keep it a secret.)
I am honestly confused with why everyone considers non-disparaging agreements bad in all contexts.
People often end up hating each other, eg sometimes bad break-ups happen. I do think that “I am not going to bad-mouth you, you’re not going to bad-mouth me” is a sensible fair thing to do that allows people a) move on with their lives without a fear of retaliation, b) allows more honest relationships when they work because you don’t have to be constantly collecting “evidence” for potential future defense?
And, the same way this makes sense in relationships, I see it making sense in employer-employee relationship?
There is a difference between not being allowed to do something, and simply choosing not to do it.
Furthermore, there is a difference between not being allowed to do something, and not being allowed to say that you are not allowed to do something. (I think the non-disparaging agreements mentioned in the debate also came with a clause that the person is not allowed to mention the existence of the agreement.)
I agree that it is sensible to move on and ignore the things that are small from the greater perspective of life, and are not going to happen again anyway. But there are exceptions, such as:
something unusually bad happened (e.g. domestic violence)
my friend wants to date the same person, and wants to check something with me
In the latter situation I still wouldn’t talk about small things (e.g. not doing dishes), but I might mention medium-sized things (e.g. cheating), especially if I was asked explicitly.
(There is no clear definition of “unusually bad”, so this depends on people being reasonable, which is often a very naive expectation, I know. But I still want people to be able to talk about their experiences of domestic violence. Maybe a better protocol would be to have an impartial third party who could be asked whether X is or isn’t unusually bad and therefore an exception from the usual rules. Also note that people can be unreasonable in both directions. Sometimes an angry ex believes that someone not doing dishes is the worst person ever. Sometimes a victim of domestic violence believes that they deserved it.)
I might decide not to answer some questions, but that is not the same as lying. For example, if my friend asks “did your ex ever cheat on you?” and the true answer happens to be “yes”, I might say “I don’t talk about my previous relationships”, or I might say “yes”, but I wouldn’t say “no”.
And that is exactly the problem with legal agreements that not only would prevent me from saying “yes”, but also from saying “you know, I am legally not allowed to comment on this”, so my only legal options would be to say “no” or to somehow distract my friend from the fact that I have never answered the question.
I would say it to be quite unusual to not be allowed to say that you are under NDA.
I don’t think that’s accurate. Almost every severance agreement template (which is the most common context of a non-disparagement agreement) I’ve seen has a clause that covers the existence of the NDA itself. Here is an example: https://www.indeed.com/career-advice/career-development/severance-agreement
I’ve only been in IP / anticompetitive NDA situations at any point in my career. The idea that some NDAs want to oblige me to glomarize is rather horrifying. When you have IP reasons for NDA of course you say “I’m not getting in the weeds here for NDA reasons”, it is a literal type error in my social compiler for me to even imagine being clever or savvy about this.
Yep, also seems horrifying to me, which is why I had such a strong reaction to Wave’s severance agreements. Luckily these things are no longer enforceable.
I believe they may still be enforceable for managers, and the definition of manager is fuzzy.
Well, there is a strict difference between “Sorry, I can’t discuss this topic, I am under a strict NDA” vs sharing details of the contract you signed. Yes, I am aware that the content of contracts usually is protected by confidentiality, but not necessary the very existence of them.
The existence of the confidentiality and non-disparagement clause is usually covered by confidentiality. This is relatively common practice, because ominously going around saying that you have signed a non-disparagement-clause is often as effective at harming the reputation of a company as going into the details.
This was also the case in the wave severance agreements.
I suspect the crux here is that it seems immature to me to spend lots of energy to keep retaliating after a bad break-up. Rather than “let us agree to keep it a secret what happened” I’d say “let us agree to not act in a malicious or petty way after we’ve broken up”.
Relatedly if it gets to the point where you “hate” your partner you should have already left earlier and it is your responsibility to have not let it get that far. (Or alternatively they did something surprising and very bad and this is precisely the sort of info that other people would benefit from knowing, and it’s wrong to keep it a secret.)