This also goes beyond just a matter of workers rights, but also the rights guaranteed most citizens of the US, those guaranteed by the Bill of Rights, such as the First Amendment.
What price can one place on freedom of speech? Yahoo put a price on the First Amendment—one month's salary and two months worth of COBRA health insurance for each and every one of the people who were recently laid off.
The news came on 12 February. People were called at home, called on vacation or escorted individually into a conference room before being escorted off the campus. I was called on my way to my doctor's appointment for a workers comp re-injury—a re-injury that could have been avoided if Yahoo had paid attention to my doctor's orders and my own complaints of pain. This is to say that although I complained to the HR representative on the last day of December and requested to be returned to the job I had been cleared to work full-time at by my physician, yet as of the last few days of January, I was still waiting.
California requires 60-day notice or at least 60 days worth of pay and benefits. In addition to those, Yahoo was willing to help those laid off find work through a referral service as well as that extra one month of pay and two months worth of COBRA health insurance if and only if individual employees were willing to sign a severance agreement which included signing off on all claims—known and unknown—of discrimination and signing a non-disparagement agreement.
Non-disparagement agreements are becoming widespread it seems. What is the harm of that? Plenty if the company is violating state or federal labor laws. The Yahoo non-disparagement clause is as follows:
You agree not to disparage Yahoo! Or its officers, directors, employees, shareholders or agents, in any manager likely to be harmful to them or their business, business reputation or personal reputation; provided however that statements which are complete and made in good faith in response to any question, inquiry or request for information required by legal process shall not violate this paragraph.
This means that I could not work as an Internet services analyst and be critical of Yahoo's services in comparison with MSN or Google for the rest of my life. The agreement isn't reciprocal. If there was a subpoena, however, I could respond to specific questions.
While I immediately, as per their instructions, inquired about my future ability to analyze search marketing services and they assured me I would receive a response to my questions, I never did until after the first deadline when I reminded them that their response hadn't come soon enough. The best they could do was allow me to speak freely as required by my employer (but not supervisor in the case of a non-paid work or educational treatise).
They also couldn't help me get around another part of the separation agreement where I would have to swear that I have "not suffered any discrimination, harassment, retaliation, or wrongful treatment by any released party." Unfortunately, as of 2 February 2008, I had filed another complaint to Human Resources about wrongful treatment.
I had asked for arbitration as Yahoo was unwilling to follow my doctor's instructions, leading to re-injury and even when informed I was in pain, I wasn't allowed to return to work that I could do—the work that my doctor had cleared me to work full-time at in October 31, 2007.
Yahoo was funny like that.
Yahoo, like other companies and private individuals, is protected from liable, slander and defamation of character. You can't yell fire in a crowded public place as per Schenck v. United States - a case that actually was about the distribution of anti-draft fliers during the World War I. Yahoo is protected by regular contract agreements from having employees steal ideas they came up with while under contract and working at Yahoo on Yahoo projects.
Yahoo is also a news portal and one would think supportive of journalists—unless they are in China being investigated by the Chinese government.
Dan Fost wrote in the San Francisco Post that non-disparagement agreements were surprisingly effective, but also problematic for reporters—and somewhat questionable when it was media outlets requiring non-disparagement clauses signed for severance.
The issue first reared its ugly head in February when Amazon.com -- not even a media company -- tried to make the clause part of a severance package for 1,300 laid-off workers. Workers who refused to sign it would get only two weeks' severance, compared with the more generous 12-week packages awarded to those willing to keep their mouths shut. But in the resulting hue and cry, Amazon backed down.
Non-disparagement clauses kept workers from Inside.com, BabyCenter.com, Healtheon/WebMD, Health magazine, Cnet Networks, according to Fost.
It's just standard business in the tech world, Cnet spokeswoman Blaise Simpson told me. "That's part of our standard agreement when they become an employee here," Simpson said. "The First Amendment does not prevent private parties from voluntarily entering into a contract to keep information confidential."
She added, "In a situation like this, it's not to anyone's benefit to disparage anyone."
Yes, but I thought the truth would set one free?
If I live 20 more years, Yahoo would be paying me about 50 cents per day for that free speech. If I lived 40 more years, it would be less than 30 cents per day.
Bennett Hall of the Corvallis Gazette Times wrote about HP's 2005 layoff of 570 employees.
Most of the five-page document is boilerplate stuff — standard promises not to give away company secrets, take home office equipment or make copies of confidential customer lists.
But right smack in the middle of the 17 numbered paragraphs comes Article 9, which begins: “Employee agrees that he/she will not make or publish, either orally or in writing, any disparaging statement regarding HP.”
In the article, the possibility that whistleblowers might be afraid to report a former employer's misdeeds after signing such a clause was considered. The agreements are legal because you are allowing an organization to compensate you for your silence. You're losing your job. Can you afford to turn away from money?
“Most people are not in a financial position to walk away from it,” Hunt noted, “so it’s not as freely entered into as one would like.”
Hall spoke with social ethicist Courtney Campbell who commented:
“Even though it has legal standing, it’s really a form of moral blackmail,” said Campbell, who chairs the philosophy department at Oregon State University. “It’s a form of intimidation of the employee to keep silent, to place a muzzle on them, which I think is contrary to the values of a free society.”
Having been through two major injuries in the last five years, I cannot actually afford to give up that money, however, I also think I cannot lie.
After speaking with a person at Industrial Relations, I was encouraged to go to Fair Employment and consult a lawyer because there were several "red flags." Yahoo's actions astounded or confounded insurance adjusters and my own doctor. One of the first questions I was asked during my Fair Employment interview was had I signed the severance agreement.
What's wrong with Yahoo? Their managers do not seem to know state and federal labor laws and instead of recognizing their errors and the possible repercussions those discriminatory actions might have on employees, they gloss over those problems and carry on as if nothing was wrong.
Why haven't these practices been stopped? In my opinion, formers Yahoos are too afraid to talk for fear of losing their severance pay and current Yahoos are afraid of losing their job so they won't talk and they won't stand as witnesses. This probably isn't peculiar to Yahoo.
From what I heard in the group severance explanation meeting in February, perhaps the cause for greatest concern was health insurance. Aren't Americans all just one major injury away from poverty? That's probably why, without making any sort of limitation, Yahoo was willing to offer two months worth of COBRA for meeting their deadlines.
I know that I was willing to tolerate certain things because I desperately wanted to keep my health insurance. I'm sure the desperation at Yahoo is much worse now, particularly since one person they kept on, took a manager's advice and didn't initially report her on-the-job injury. She mentioned she had even been told by a supervisor to quit complaining. Last I heard, she was paying for her own physical therapy.
Were there other red flags? Will we ever hear about them? Does Yahoo have a reason to stop? Why should they when they can intimidate or buy off people so easily?
I wonder how it works in countries like Japan, Canada or Great Britain where there is socialized medicine or national health care systems. I don't know what kind of carrots they use when health care is guaranteed.
So in some ways, the lack of a national health insurance does influence free speech. Fear of losing health insurance, even for a month or two months puts a chill on free speech. Companies like Yahoo take advantage of that in their non-disparagement agreements.