It's getting harder and harder to use gag clauses to silence laid off workers in America

In America, it's common practice to make severance pay for laid-off workers contingent on signing a "nondisparagement clause" that prohibits workers from ever speaking ill of their former employers — some contracts I've seen even prohibit revealing the existence of these clauses, combining silence with secrecy. A winning combination if you're a rapacious corporation engaged in legally questionable labor practices.

But as more and more layoffs are precipitated by illegal practices like hiring H1B visa-holders and forcing existing workers to train them as a condition of severance bonuses, workers are growing bolder and refusing to sign gag-clauses — or breaking them and daring their former employers to sue.

It's a hot-button issue in this election cycle, too. I hope this will embolden more workers to come forward. The legal calculus is on their side: companies use gag-clauses to keep their actions from tarnishing their reputation ("Eversource lays off its workers and illegally replaces them with H1B visa-holders"). If the company then sues its former workers, they tarnish their own reputations ("Eversource not only lays off its workers and illegally replaces them with H1B visa-holders, they also sue their former employees for telling the world about it"). It's the game-theoretical Streisand Effect in action.

In March, two Americans who had been laid off in 2014 by a New England power company, Eversource Energy, spoke at a news conference in Hartford even though they had signed nondisparagement agreements. Craig Diangelo, 63, and Judy Konopka, 56, said most of the 220 people facing dismissal had been required as part of their severance to train Indian immigrants with H-1B and other visas.

In a protest, departing employees posted American flags outside their cubicles. As they left, they took the flags down. Mr. Diangelo took a photograph of the flags in his final days at the utility. At the time, he and Ms. Konopka spoke with reporters, including from The New York Times, but they did not want to be quoted, even without their names.

In January, Senator Blumenthal spotted the photograph in an article in Computerworld, a tech industry publication, and was dismayed to learn of the layoffs so long after they happened. In a letter to the company, the senator questioned whether the dismissals were "accomplished through apparent abuses" of visas, and he demanded assurances that former employees would not be sued if they spoke with government officials.

Laid-Off Americans, Required to Zip Lips on Way Out, Grow Bolder [Julia Preston/NYT]

(via Naked Capitalism)

(Image: Woman with pink slip at Occupy Wall Street, Timothy Krause, CC-BY)