And here is the root of your misunderstanding.
You seem to be under the impression that because some companies occasionally scale severance based on tenure, it's comp for work already performed. Severance is like tipping in that it's not required at all.
Keeping one's mouth shut is a service. They're paying for it. So would be not competing with the company, if it were legal to enforce. Not sure why you think otherwise, just your personal vibes I guess? Maybe look up what an economic "service" is.
Maybe you're confused because as you say, no one has ever offered you money to keep your mouth shut?
This service only gets paid for when the recipient has credible things to say.
Similarly, some people get paid tons of money to just say their opinion, and here you are doing that labor for free too. The people getting paid have valuable information to offer, which someone else either does or does not want shared.
Great comparison. Tipping is also a form of compensation for work already performed.
It's not required in the legal sense indeed. It is, effectively, required in every other sense. It's a basic expectation of a reasonable customer.
Positions where tipping is expected (e.g. waiters) typically have lower wages; furthermore, in the US, the minimum wage for waiters is lower because of that.
Tips are compensation, as in: payment for work. It is the part of the compensation that you can refuse to pay and not have the cops called on you.
Severance is like that indeed, except you're asking the server to hereafter refer to you as "daddy".
>So would be not competing with the company, if it were legal to enforce.
See, you understand that some things (like "not competing") aren't considered "services" that you can sign a contract to "perform" in exchange for severance.
"Not disparaging", in my opinion, belongs in the same category for the same reasons.
>Maybe look up what an economic "service" is.
Please provide a definition according to which not disparaging constitutes a service.
I wonder what definition you're using, because it makes blackmail a "service" (you're paying me for not to beat you up, see).
>Maybe you're confused because as you say, no one has ever offered you money to keep your mouth shut?
I've signed NDAs and signed severances with "non-disparagement" clauses in the past, so I understand the concept full well.
But come on. You're conflating legal and moral arguments, as well as legality and reality.
>The people getting paid have valuable information to offer, which someone else either does or does not want shared.
This is not what non-disparagement is. It's not restricting factual statements.
Happy to. A service is any activity that one party performs (or refrains from performing) in exchange for consideration from another. That's basic contract law. Every lawyer learns this in 1L.
> it makes blackmail a "service"
No, because blackmail involves a threat to do something you have no right to do, or a threat to reveal information as leverage. A company offering severance isn't threatening you with anything. They're offering you money you aren't otherwise entitled to. You're free to walk away with nothing and disparage to your heart's content.
> you're conflating legal and moral arguments
I'd say that's been your move this entire thread. You keep asserting that severance is compensation for past work as though it's a legal fact, when legally it isn't. It's a voluntary offer. Then when the legal framework doesn't support you, you pivot to "well it's a basic expectation," which is a moral argument. I'm fine having either conversation, but pick one.
> It's not restricting factual statements
Agreed that overbroad non-disparagement clauses are bad. But "this clause is sometimes too broad" and "this clause is inherently coercive" are very different claims, and you've been arguing the latter.
By that definition, blackmail (or extortion) is a service, performed by the party doing the blackmailing.
It refrains from doing some activity (like beating you up, or reporting you to police) in exchange for consideration from you.
>No, because blackmail involves a threat to do something you have no right to do
I have the right to report you to the police for a crime.
What I don't have is the right to perform the service of "refraining from performing" this act in exchange for consideration from you.
That's extortion, if I offer this "service" to you.
Nor do you have the right to pay me to perform that "service". That's obstruction of justice (or you figure out what crime it is to pay someone to keep their mouth shut after they witness a murder).
The point of this exercise is that saying "it's a service" doesn't establish either morality or legality, as both extortion and bribery fit that definition (extorter is performing the service of not fulfilling the threat, briber is buying a service of adverse actions not taken against them).
That's to say, this definition of "service" is quite contorted.
No sane person sees extortion as a bonafide service perfomed by the extorter. It's a perversion of the English language to consider it as such.
That's in the same vein as when mafia collects a "protection" fee, we understand that it's not the same thing as a business purchasing services of a security company.
Mafia doing the protection racket is not performing a "service" for the business it's racketeering in the human, English language sense of the word "service".
The contact law language defines this word differently for formal convenience, just in the same way that normal, open, closed, and so on mean something very specific in mathematics that has nothing to do with what these words mean out there in the real world.
We are in the real world, talking about the real world, where keeping your mouth shut isn't a service that someone performs, even though it may — under some limited circumstances — be considered one under contract law.
My argument is that the extent of these limits shouldn't include the context of a termination agreement, just like it currently doesn't include the context of reporting a crime.
I hope I've made myself clear enough here for the legally minded.
>You keep asserting that severance is compensation for past work as though it's a legal fact, when legally it isn't.
At no point in this conversation did I assert that it's a legal fact. The article we're discussing establishes the opposite.
My entire point is the mismatch between the legislation and reality.
Severance is compensation for being fired at will after working as an employee for some length of time.
That's all it is.
In France, for example, it's legally mandated for certain types of contracts.
In the US, it isn't.
The laws don't determine the meaning of a concept.
You wouldn't be doing hard drugs if you smoked weed two years ago, even though then it was a Schedule I drug in the US, along with heroin.
That legal clarification was a mismatch between reality and the legal definition of a "hard drug".
Marijuana isn't, and has never been a substance comparable to heroin, yet legally they were in the same class.
Tacking a non-disparagement clause into a termination agreement is not, and has never been comparable to advance payment for future work (or service), yet legally they're in the same class today.
It's particularly Orwellian to insist that the termination agreement marking the END of one's SERVICE to a company, is, in fact, rightfully a contract that enters someone into a service to the same entity, in perpetuity.
War is peace, termination of service is perpetual service. Utterly brilliant.
Please do yourself a favor and read Orwell's essay on the English language[1] to understand what I'm referring to here (even if you already read his other books).
> "this clause is sometimes too broad" and "this clause is inherently coercive" are very different claims, and you've been arguing the latter.
That's correct.
The employee doesn't get to determine any of the terms of the agreement, nor do they get any heads-up (like they would in other countries, where termination requires an advance notice under most circumstances).
A less coercive approach would be a termination agreement that contains no "non-disparagement" clauses, and a separate non-disparagement "contract" that the employee would be able to accept or reject — neither covered by an NDA.
That would separate the non disparagement shenanigans from the concept of severance (we pay you for letting you go and skip the hassle of going to court for that), and would help establish a fair market value for each of these components independently.
[1] https://www.orwellfoundation.com/the-orwell-foundation/orwel...
