Non-disparagement severance clauses are being disparaged

This article appeared in the Times earlier this week:

Those who have lost jobs to foreigners on temporary visas, in particular, have begun to speak out despite their severance agreements with companies.

Source: Laid-Off Americans, Required to Zip Lips on Way Out, Grow Bolder – The New York Times

I was pleased to see it. Some people who have been, as the Brits so kindly put it, “made redundant,” i.e., have been fired and who have been offered bribes, i.e., severance monies, to sign agreements that demand the signer not speak ill of the company who fired him, are now speaking out. Even if some of them ask to remain anonymous.

I’ve written about the angsty condundrum that is a settlement agreement. You are a worker not being offered a golden parachute. You need the money and the (COBRA) right to extend your medical insurance. You are pissed off that–in the cases specified in the Times article–you’re being “let go” so that a foreign worker (who is probably getting a lower salary than yours) can replace you.

And to make everything really abasing, you are being required to train your replacement. And then you’re not allowed to complain about it.

It happened to me, so I fully understand the problem, the anger–although my replacement was not a foreign worker.

I also know in my brain and heart that non-disparagement clauses are a denial of our First Amendment right to speak out critically. Seems that companies think they can deny us the same constitutional right that our government can’t.

According to the article, some people in Congress are taking careful note and planning to do something about this:

Leading members of Congress from both major parties have questioned the nondisparagement agreements, which are commonly used by corporations but can prohibit ousted workers from raising complaints about what they see as a misuse of temporary visas. Lawmakers, including Richard Durbin of Illinois, the second-highest-ranking Senate Democrat, and Jeff Sessions of Alabama, the Republican chairman of the Senate Judiciary Subcommittee on Immigration, have proposed revisions to visa laws to include measures allowing former employees to contest their layoffs. [My emphasis]

“I have heard from workers who are fearful of retaliation,” said Senator Richard Blumenthal, Democrat of Connecticut. “They are told they can say whatever they want, except they can’t say anything negative about being fired.”

Here’s another excerpt from the article:

“It is very frustrating that you can’t share your story with the public,” said one former Abbott manager, who had worked for the company for 13 years, rising to an important supervisory position. He had prepared a 90-page manual for his foreign replacements showing how to perform every detail of his work. With a disabled child who requires medical care, he said he had to take his severance and its nondisparagement clause, since it extended his medical benefits. So he asked to remain anonymous.

“I’ve been laid off before, I can understand that,” he said. “But these visas were meant to fill in gaps for resources that are hard to find. This time the company actually asked me to transfer my knowledge to somebody else. That changes the equation.”

According to federal rules, temporary visas known as H-1Bs are for foreigners with “a body of specialized knowledge” not readily available in the labor market. The visas should be granted only when they will not undercut the wages or “adversely affect the working conditions” of Americans.

But in the past five years, through loopholes in the rules, tens of thousands of American workers have been replaced by foreigners on H-1B and other temporary visas, according to Prof. Hal Salzman, a labor force expert at Rutgers University.

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