TLDR: Peggy, a person from a marginalized group, was laid off from an exploitative company and is being asked to sign a non-disparagement agreement as a condition of receiving severance. Should she sign?
Peggy was laid off after several years of working extremely hard and being underpaid. Peggy’s whole department of people from a minority group got the axe while managers and executives from more privileged backgrounds making over $160,000 per year kept their jobs. Peggy is being offered severance pay in exchange for signing a non-disparagement agreement. The agreement is extremely vague, has no end date, and reads as follows:
CONTINUING OBLIGATIONS; NON-DISPARAGEMENT. You acknowledge that you remain bound by any previous Confidential Information and Inventions Agreement between you and the Company, attached hereto as Exhibit A, and agree to abide by those continuing obligations. You also agree not to disparage the Company and its officers, directors, employees, consultants, shareholders, and agents in any manner likely to be harmful to its or their business, business reputation, or personal reputation; provided that you may respond accurately and fully to any question, inquiry or request for information when required by legal process, or as set forth in the section of this Agreement entitled “Protected Rights.”
(The protected rights are things they legally must allow, such as filing an EEOC complaint.)
Peggy could use the money, but won’t end up on the street without it. The severance pay does not reflect the many years of service Peggy gave to the company nor the enthusiasm she brought to helping the marginalized people it is supposed to serve (and actually screws over). Peggy wants to be able to freely speak about how the people she spent years helping were hurt by what the company did. Peggy might also decide to say very little publicly, but resents the idea of forced silence. She wants to keep her options open now and in the future. Peggy’s integrity means more to her than money.
How enforceable is such a vague non-disparagement clause? Shouldn’t it be required to have an end date? Could Peggy sign and then proceed to say whatever the fuck she wants within reason? She wouldn't engage in harassment or tell the world that the CEO is a lizard person, just share the facts about the layoffs and how this company doesn’t really help the marginalized community it is supposed to represent.
Should Peggy sign? Should she exchange her free speech for this pittance? What would you do?