Non-disparagement agreements: the twist

It occurs to me to note something fairly important about non-disparagement agreements: they can only be credibly proposed by the guy who has the upper hand.

That is, Will Blythe’s employer fired him and was holding out that fat two-week severance check as a sine qua non. Blythe had, presumably, no negotiating power except, of course, his writer’s integrity. But he himself could not have asked for a do-not-disparage-me clause in his termination papers — unless he was asking it as a quid pro quo. “I’ll show you mine if you show me yours.” I did that once; it was basically useless except it made me feel a little more in control. (The money I was getting made me feel a lot more in control.) But Blythe was really not in a position to ask anything at all. He could say, OK, or he could say No. To his great credit (but not credit in his bank account) he said No, and told us all why.

Thing is, if you are losing a case, there’s no conceivable reason why your opponent would ever agree to sign a non-disparagement clause. If you presented it like this: hey, we’re willing to settle and pay you money if you’ll sign a non-disparagement agreement, your opponent is likely to say, “Huh? Are you serious?” because your opponent has an alternative: she can proceed and win the case.

Anyway, a non-disparagement agreement is prissily vague and unconstitutional, a flimsy barrier to truth-telling. It’s sort of a paper shield coated in lead-based paint and the only person who seems to think it’s protective is the fantasy-addled person hiding behind it.

The bottom line: only the guy with the clout is in a position to ask for a non-disparagement agreement.

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