Is the Wave non-disparagement thingy okay?
A few weeks ago, Linch, Auckland (pseudonym), and I (Ruby) decided to chat about something and settled on this topic. What follows is a mix of distillation and edited chat (Slack) transcript.
Auckland and I (Ruby) start from the position that the Wave non-disparagement agreement is probably bad. Linch expresses uncertainty about whether, if broader society (or at least your local reference class) makes use of non-disparagement agreements, that makes it okay to use them yourself.
We discuss various possible examples of not-good behavior (non-consent, lying, bribing, saying “awesome” when you mean “mildly positive”) that people empirically engage in and/or seem more okay if everyone is doing them. We think about what “reference class” Wave is in, e.g. more general Silicon Valley vs EA.
A big is crux is whether Wave had been prompted to reflect on their non-disparagement agreement, and if so, their reaction. It might be that non-disparagements are bad, but you have to be paying attention to notice when you should be morally better than your surrounding society. Some employees wanting to negotiate out of the non-disparagement agreement seems like it was a prompt to reflect on it. Also how much the founders of Wave say “oops” when it’s pointed it out, vs defending the practice.
Beyond that, there’s a question of even if someone is not particularly blameworthy for engaging in a standard widespread not-good behavior, do you still want them in a leadership position? E.g. board of Effective Ventures/CEA? As opposed to wanting leaders who’d have the discernment to catch this kind of thing and not do it. We have some more discussion about who you want for EA leadership related to how good you think EA is.
Linch raises that non-disparagement agreements are in fact not legally enforceable. We all agree that it’s plausible EAs should push Wave to make an official declaration to void their non-disparagement agreements.
Background Context
In the discussion of Nonlinear’s behavior, the topic of NDAs/other agreements that restrict employees speaking negatively of former employer’s came up.
jefftk (permalink):
an NDA to prevent people from publicly criticizing their former workplace seems line-crossing to me.
I don’t like these, but they are (were) depressingly common. I know at least one org that’s generally well regarded by EAs that used them.
habryka (permalink):
Oh, wow, please tell me the name of that organization. That seems very important to model, and I would definitely relate very differently to any organization that routinely does this (as well as likely advocate for that organization to no longer be well-regarded).
licolnquirk (permalink):
Jeff is talking about Wave. We use a standard form of non-disclosure and non-disparagement clauses in our severance agreements: when we fire or lay someone off, getting severance money is gated on not saying bad things about the company. We tend to be fairly generous with our severance, so people in this situation usually prefer to sign and agree. I think this has successfully prevented (unfair) bad things from being said about us in a few cases, but I am reading this thread and it does make me think about whether some changes should be made.
I also would re-emphasize something Jeff said—that these things are quite common—if you just google for severance package standard terms, you’ll find non-disparagement clauses in them. As far as I am aware, we don’t ask current employees or employees who are quitting without severance to not talk about their experience at Wave.
Further conversation followed in that thread.
Transcript
This transcript is cleaned up, flattened (from Slack threads), and has less-interesting or well-fitting parts of the conversation removed, had a few bits edited after the fact, and finally ported into the LessWrong Dialogue format.
“Everybody else does it”
<we discuss the hiring there, how Sierra Leone norms might differ and affect the non-disparagement agreement, and whether the non-disparagement agreement was targeted at our would apply to those employees, before we return the question of just assuming Wave is a US company.>
jumping back
Cruxes
After some further discussion, we stop to check in on cruxes
Please take 3-minutes to think about where you’re at with the top-level question of ok or not, and your current cruxes. Share at 22:23
<some discussion of need to wrap up, briefly return previous topic
More on opting in to lying + are non-disparagement agreements legally enforceable?
going over time
This probably isn’t cruxy, but I want to point out that anyone who signed an NDA was an employee (which came with stock options) who got severance (probably more stock options, although I believe some people traded at least some of them for cash). Wave had a partial exit but I believe it still left everyone with illiquid stock. Maybe there are exceptions, but it seems like you should assume by default that a former Wave employee you are talking to has a financial interest in the company, which may affect their reports.
But at least Wave can’t take the stock back. You get paid if Wave does well whether they like you or not. I know of another company that did something weird with options such that they can revoke un(vested? unspent? unsold? I don’t remember the specifics) options at any time. So the company can deliver harsh financial punishment at any time, if they don’t like what you do after you leave.
Private companies can and do prevent people they don’t like from selling stock to private buyers. So as an addition to this comment, I’d note that “the ability to cash out before an IPO 5+ years in the future” is a strong reason not to make an enemy of your former startup.
I am honestly confused with why everyone considers non-disparaging agreements bad in all contexts.
People often end up hating each other, eg sometimes bad break-ups happen. I do think that “I am not going to bad-mouth you, you’re not going to bad-mouth me” is a sensible fair thing to do that allows people a) move on with their lives without a fear of retaliation, b) allows more honest relationships when they work because you don’t have to be constantly collecting “evidence” for potential future defense?
And, the same way this makes sense in relationships, I see it making sense in employer-employee relationship?
There is a difference between not being allowed to do something, and simply choosing not to do it.
Furthermore, there is a difference between not being allowed to do something, and not being allowed to say that you are not allowed to do something. (I think the non-disparaging agreements mentioned in the debate also came with a clause that the person is not allowed to mention the existence of the agreement.)
I agree that it is sensible to move on and ignore the things that are small from the greater perspective of life, and are not going to happen again anyway. But there are exceptions, such as:
something unusually bad happened (e.g. domestic violence)
my friend wants to date the same person, and wants to check something with me
In the latter situation I still wouldn’t talk about small things (e.g. not doing dishes), but I might mention medium-sized things (e.g. cheating), especially if I was asked explicitly.
(There is no clear definition of “unusually bad”, so this depends on people being reasonable, which is often a very naive expectation, I know. But I still want people to be able to talk about their experiences of domestic violence. Maybe a better protocol would be to have an impartial third party who could be asked whether X is or isn’t unusually bad and therefore an exception from the usual rules. Also note that people can be unreasonable in both directions. Sometimes an angry ex believes that someone not doing dishes is the worst person ever. Sometimes a victim of domestic violence believes that they deserved it.)
I might decide not to answer some questions, but that is not the same as lying. For example, if my friend asks “did your ex ever cheat on you?” and the true answer happens to be “yes”, I might say “I don’t talk about my previous relationships”, or I might say “yes”, but I wouldn’t say “no”.
And that is exactly the problem with legal agreements that not only would prevent me from saying “yes”, but also from saying “you know, I am legally not allowed to comment on this”, so my only legal options would be to say “no” or to somehow distract my friend from the fact that I have never answered the question.
I would say it to be quite unusual to not be allowed to say that you are under NDA.
I don’t think that’s accurate. Almost every severance agreement template (which is the most common context of a non-disparagement agreement) I’ve seen has a clause that covers the existence of the NDA itself. Here is an example: https://www.indeed.com/career-advice/career-development/severance-agreement
I’ve only been in IP / anticompetitive NDA situations at any point in my career. The idea that some NDAs want to oblige me to glomarize is rather horrifying. When you have IP reasons for NDA of course you say “I’m not getting in the weeds here for NDA reasons”, it is a literal type error in my social compiler for me to even imagine being clever or savvy about this.
Yep, also seems horrifying to me, which is why I had such a strong reaction to Wave’s severance agreements. Luckily these things are no longer enforceable.
I believe they may still be enforceable for managers, and the definition of manager is fuzzy.
Well, there is a strict difference between “Sorry, I can’t discuss this topic, I am under a strict NDA” vs sharing details of the contract you signed. Yes, I am aware that the content of contracts usually is protected by confidentiality, but not necessary the very existence of them.
The existence of the confidentiality and non-disparagement clause is usually covered by confidentiality. This is relatively common practice, because ominously going around saying that you have signed a non-disparagement-clause is often as effective at harming the reputation of a company as going into the details.
This was also the case in the wave severance agreements.
I suspect the crux here is that it seems immature to me to spend lots of energy to keep retaliating after a bad break-up. Rather than “let us agree to keep it a secret what happened” I’d say “let us agree to not act in a malicious or petty way after we’ve broken up”.
Relatedly if it gets to the point where you “hate” your partner you should have already left earlier and it is your responsibility to have not let it get that far. (Or alternatively they did something surprising and very bad and this is precisely the sort of info that other people would benefit from knowing, and it’s wrong to keep it a secret.)
Punishing the dissemination of provably false information doesn’t seem that bad of a policy, if the onus of providing the proof is on the ‘punisher’. And that’s a big caveat.
But punishing unprovable, yet-to-be-proven, and ambiguous information is clearly undesirable.
And in any scenario where the onus of proof isn’t on the ‘punisher’, then it would be really deleterious, because it could easily be gamed.