You’re Fired, But You Better Be Nice About It

Will Blythe was fired from his job at Byliner the other day. I know this not because I know him or know of him or follow him on Twitter. I know this because he wrote about it in the New York Times. Would that we all could craft a little announcement in the Times instead of to our Facebook newsfeed! I digress.

Blythe’s opinion piece is about his experience with a little item that got tucked neatly into his walking papers at Byliner: the non-disparagement clause. (reminder: read your contracts!)

“You agree,” it reads, “that you will never make any negative or disparaging statements (orally or in writing) about the Company or its stockholders, directors, officers, employees, products, services or business practices, except as required by law.” If I don’t agree to this nondisparagement clause, I will not receive my severance — in this case, the equivalent of two weeks of pay. Two weeks? Must be hard times out in San Francisco, or otherwise why the dirt parachute — and by the way, is that the sort of remark I won’t be allowed to make if I sign clause No. 12?

I would prefer not to, as Bartleby the Scrivener put it so succinctly in Herman Melville’s classic tale of bureaucratic resistance. When I shared that inclination with one of my superiors at Byliner, the news traveled up the chain of command. And I was soon informed that the president wished to assure me that there is nothing unusual about such clauses, that media people like herself sign them all the time, and that Byliner might even agree to a mutual nondisparagement clause. That means that if I don’t say anything mean about the company, its representatives won’t say anything unkind about me.

I understand the impetus behind the non-disparagement clause — a last grasp at maintaining the power differential between employer and employee. That power dynamic may be fair (if not demoralizing) when they’re employing you, but when they aren’t? “We want you gone, but we’re going to take this final opportunity to tell you what you can and can’t say even after we aren’t paying you.” NOPE. NO. Sure you’re an adult and unless you feel you’ve been treated very unfairly, you’ll use your own discretion. But isn’t the freedom from condescending little attempts at control one of the few upsides to being unemployed?

Of course, most people would need that two week’s pay and would have no choice to make a deal with the devil. Or, more realistically, most people would either not read their contract or not really have an issue with refraining from publicly disparaging their employer, regardless of how “fair” it is or isn’t.

But if you 1) have some savings shored up and are either really into fairness / have a self-righteous streak (hi!), or are a writer or anyone with some sort of platform, you gotta think: how much is that two weeks pay worth to me? And how much more than two weeks pay can I make selling out my former employer in places like the Times? Teehee!

In the end, Blythe chooses not to sign his contract:

So if nondisparagement agreements are downright ordinary and at the same time difficult to enforce, why not sign and take the severance?

Because as quaint as this may seem, giving up the right to speak and write freely, even if that means speaking or writing negatively, strikes me as the unholiest of deals for a writer and an editor to accept. Though such clauses don’t technically violate the First Amendment — I’d be explicitly agreeing to forfeit my right to speak freely if I signed clause No. 12 — such a contract has a paralyzing effect on the dissemination of the truth, with all of truth’s caustically cleansing powers. To disparage is but one tool in a writer’s kit, but it’s an essential one. That a company would offer money for my silence, which is what this boils down to — well, I’ve seen many a mob movie about exactly that exchange.

Photo: Birmingham News Room

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