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Talk back: NLRB rules against nondisparagement clauses in severance

The NLRB has ruled against clauses preventing your honest criticism for your circumstances of your severance from a company.

An upset woman putting her hands through her hair as she looks at a laptop, thinking about severance.

What happens to a job dissolved? Does it dry up like a raisin in the sun? 

More importantly, what happens to the employee who did that job? 

Layoffs aren’t the same as getting fired, sure, but BOY…do they ever suck. No need to lipstick that piggy, they SUCK. You get kicked off your position because of poor planning, poor predictions or….whatever the hell “aggressive mode” is. 

And now you have to navigate the butttopia of the unemployment system, whilst keeping a ‘I learned so much here, loved my team’ smile on your face for LinkedIn. 

Tweet from Aleksandr Volodarsky (@volodarik): Today I had to lay off 10% of the company. Not because we had to cut costs. We actually grew 7% this month and will be profitable. But aggressive mode helped us see what brings us growth and what is not as effective, and to say alive, we have to be laser-focused.

He replied to his initial tweet: From a business perspective, it is what we had to do. This will greatly impact the company and the rest of the team in a good way. But letting go people you've hired, managed, and had fun with? ...Sucks.


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But even when you have enough beef, and enough ties to freely cut and speak out about it, until recently, certain severance clauses could keep you from speaking your mind about being dumped. 

The terms in my last severance agreement went something like “I have not made, and going forward will not make, disparaging, defaming or derogatory remarks about the Company or its products, services, business practices, directors, officers, managers or employees to anyone.”  

So basically even though layoffs are absolutely 100% the result of crapblasting behavior that is fully not your fault as a now-former employee… venting your spleen about it could see you without your kissoff cash, or sued on top of being at a low professional point. 

Until now! 

The National Labor Relations Board ruled in February that severance-based lip zippery clauses were no longer legal—leaving layoff victims free to call their former employers short-sighted, callous, dishonest, or what have you and still get to cash the severance due them. Nice. 

As we’re watching this wave of tech industry layoffs and service industry strikes, and the chilling effects of strikes being illegalized, this represents a huge win for former employees

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And it also shows how employers need to get ready to toughen up and get used to their thin-skinnedness no longer being catered to by law. 

It’s not hard to slip into a mentality of ‘I’m handing out money here, so what I say goes’. In fact, it’s super easy. It can even be done laterally—people of the exact same class can go full Mr. Hyde on a retail worker despite being a similarly paid help desk employee and vice versa. However the growing pains of coming to hold less power over people will be a good thing for employers! This new law, and the ones that will surely come after, will allow (okay, fine, force) you to recognize all aspects of your employees’ humanity rather than only the ones that are useful to you. You’ll need to be, if not kind, at least just. And you know what that is? That’s growth. 

Accounts like “Eff” You I Quit are going to get to the point where they can start naming names. You’ll want to figure out how to keep yours out of people’s mouths, but with a carrot this time. 

Train up, buttercups!

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You can't spell "Together" without TGOT: That Goth Over There. Staff Writer, April Bingham, is that goth; and she's all about building bridges— both metaphorically between artistry and entrepreneurship, and literally with tools she probably shouldn't be allowed to learn how to use.

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