In late 2022, Kim, a 28-year-old tech worker, was laid off from her job at a start-up. “My severance offer was pretty generous, but in order to get it, I signed a long agreement basically saying that I wouldn’t talk about anything that happened while I was at the company,” explains Kim, whose last name is being withheld to protect her employment security. “It was presented to me as a simple protocol – a document that everyone who left had to sign – and I didn’t really think about it too much.”
Since she signed that document, however, the conditions around these common non-disparagement clauses have changed. In February, the US National Labor Relations Board (NLRB) announced most companies could no longer ban workers from publicly sharing negative remarks about their former employers. The NLRB, which is a federal agency, also determined that employers could not stop a former worker from sharing the size and nature of a particular severance deal.
This law, designed to protect a worker’s ability to publicly share the terms and conditions of their severance package, has been hailed a victory for employee rights. Indeed, the decision goes some way towards establishing transparency in corporate culture.
Yet employment experts and former employees alike are sceptical of how much this will actually address the existing culture of secrecy that allows discrimination and other forms of misconduct to persist. First, there are many exceptions to the rule. And second, fear of speaking out against an employer – and being branded unemployable as a result – is so ingrained in today’s labour-market culture, the law itself might not actually change the situation as intended.
A ‘sea change’?
For decades, US employers have been inserting terms into severance agreements to prevent departing workers from disclosing information, such as trade secrets or sensitive data. In recent years, however, some employers have broadened those provisions, waiving employees’ rights to disclose anything deemed potentially disparaging or confidential – even allegations of discriminatory practices, harassment or an unsafe work environment.
In 2020, the NLRB made the decision that forcing employees to waive their right to speak out in order to receive severance was, indeed, legal. Since then, however, the new members that comprise NLRB leadership have showed a more labourer-favourable outlook – leading to last month’s move, which overturned the 2020 decisions.
Experts and former employees are sceptical of how much this decision will actually address the existing culture of corporate secrecy (Credit: Getty Images)
While some people celebrated the NLRB decision as a victory for workers’ rights, others have had a more tempered reaction. Legal experts and individuals who have been laid off and felt unable to speak out about the terms of their severance are concerned that, in reality, it won’t change much. “It certainly will make a difference to some workers,” says Tom Spiggle, an employment lawyer based in Virginia, “but it probably won’t represent a sea change.”
One core reason, believe some legal experts, is that there are an array of workers and organisations the ruling exempts. Federal, state and local government agencies – including public schools, libraries and parks – do not fall under the scope of the NLRB's jurisdiction. Neither do railways and airlines.
Another issue is that some categories of workers are also unlikely to be covered by the ban, such as independent contractors, agricultural and domestic workers and any individual employed by a parent or spouse. But one of the most notable exceptions is that supervisors – a widely defined term for anyone who hires employees or sets pay – are not covered, either.
Branded a trouble-maker
But even for those workers to which the law applies, the NLRB’s move might not be enough to encourage them to speak up.
“Workers are often inhibited from criticising a former employer even without any legal or contractual constraint,” says Cynthia Estlund, a professor of law at the New York University School of Law. “The NLRB decision will only remove one source of inhibition,” she adds. In other words, while laid off workers no longer have to agree not to disparage their former company in order to receive severance, the new decision may not be enough to change the existing precedent that publicly speaking out against a former employer is taboo.
Author and HR consultant Sarah Aviram agrees. “When it comes to employees sharing the experience they had with their former company, they seem to be following an important unspoken rule: praise in public and protest in private,” she says.
Workers are often inhibited from criticising a former employer even without any legal or contractual constraint. The NLRB decision will only remove one source of inhibition – Cynthia Estlund
Laid-off tech worker Kim says there were a lot of things that went on at the company that she didn’t like – she felt the culture was “sexist”, for example. Despite that, even if she’d been protected by the ruling when she’d been laid off, she says she would never have considered speaking in any sort of public way about her feelings towards the company – especially not in the immediate aftermath of being laid off.
“Even I hadn’t had to sign [the agreement],” she says, “I wouldn’t have done anything different.” Particularly in an environment of mass layoffs and the anxiety that goes with it, she adds, it would be “foolish” to risk being branded a trouble-maker. “I was unemployed and needed a new job,” explains Kim. “No-one wants to hire someone who’s known to be a complainer – who might turn out to pose a massive PR risk.”
Aviram has seen other workers feel the same way. She adds that particularly in an environment of economic uncertainty, laid-off employees might be complaining about their former employers to close friends and family, but in public, they’re focusing on what they can control, which is finding a new job, rather than what they can’t control, which is the poor experience they might’ve endured at a former workplace.
Because the ruling is still so new, Spiggle says it remains to be seen how firms will choose to respond to the NLRB’s new standard. “Non-disparagement agreements are currently almost in every single severance agreement. Companies rely on them heavily,” he says. “So, it will be interesting to see what managers make of this.”
It’s also too early to tell how much it will – or won’t – embolden workers to speak out, or change attitudes about others coming forward.
Even though the ruling wouldn’t have changed Kim’s actions, she’s still optimistic. “Maybe it’s a sign of things to come – a sort of gradual shift in the power balance in favour of the employee. Maybe even just knowing that there are fewer protections for employers will be enough for bosses to treat workers better,” she adds. “At the end of the day, even if it rarely happens, no one wants to risk being called out on social media for being a bad boss.”