To expand on my “that’s a crux”: if the non-disparagement+NDA clauses are very standard, such that they were included in a first draft by an attorney without prompting and no employee ever pushed back, then I would think this was somewhat less bad.
It would still be somewhat bad, because Anthropic should be proactive about not making those kinds of mistakes. I am confused about what level of perfection to demand from Anthropic, considering the stakes.
And if non-disparagement is often used, but Anthropic leadership either specified its presence or its form, that would seem quite bad to me, because mistakes of commision here are more evidence of poor decisionmaking than mistakes of omission. If Anthropic leadership decided to keep the clause when a departing employee wanted to remove the clause, that would similarly seem quite bad to me.
I think that both these clauses are very standard in such agreements. Both severance letter templates I was given for my startup, one from a top-tier SV investor’s HR function and another from a top-tier SV law firm, had both clauses. When I asked Claude, it estimated 70-80% of startups would have a similar non-disparagement clause and 80-90% would have a similar confidentiality-of-this-agreement’s-terms clause. The three top Google hits for “severance agreement template” all included those clauses.
These generally aren’t malicious. Terminations get messy and departing employees often have a warped or incomplete picture of why they were terminated–it’s not a good idea to tell them all those details, because that adds liability, and some of those details are themselves confidential about other employees. Companies view the limitation of liability from release of various wrongful termination claims as part of the value they’re “purchasing” by offering severance–not because those claims would succeed, but because it’s expensive to explain in court why they’re justified. But the expenses disgruntled ex-employees can cause is not just legal, it’s also reputational. You usually don’t know which ex-employee will get salty and start telling their side of the story publicly, where you can’t easily respond with your side without opening up liability. Non-disparagement helps cover that side of it. And if you want to disparage the company, in a standard severance letter that doesn’t claw back vested equity, hey, you’re free to just not sign it–it’s likely only a bonus few weeks/months’ salary that you didn’t yet earn on the line, not the value of all the equity you had already vested. We shouldn’t conflate the OpenAI situation with Anthropic’s given the huge difference in stakes.
Confidentiality clauses are standard because they prevent other employees from learning the severance terms and potentially demanding similar treatment in potentially dissimilar situations, thus helping the company control costs and negotiations in future separations. They typically cover the entire agreement and are mostly about the financial severance terms. I imagine that departing employees who cared could’ve ask the company for a carve-out on the confidentiality for the non-disparagement clause as a very minor point of negotiation.
It’s great that Anthropic is taking steps to make these docs more departing-employee-friendly. I wouldn’t read too much into that the docs were like this in the first place (as this wasn’t on cultural radars until very recently) or that they weren’t immediately changed (legal stuff takes time and this was much smaller in scope than in the OpenAI case).
Example clauses in default severance letter from my law firm:
7. Non-Disparagement. You agree that you will not make any false, disparaging or derogatory statements to any media outlet, industry group, financial institution or current or former employees, consultants, clients or customers of the Company, regarding the Company, including with respect to the Company, its directors, officers, employees, agents or representatives or about the Company’s business affairs and financial condition.
11. Confidentiality. To the extent permitted by law, you understand and agree that as a condition for payment to you of the severance benefits herein described, the terms and contents of this letter agreement, and the contents of the negotiations and discussions resulting in this letter agreement, shall be maintained as confidential by you and your agents and representatives and shall not be disclosed except to the extent required by federal or state law or as otherwise agreed to in writing by the Company.
To expand on my “that’s a crux”: if the non-disparagement+NDA clauses are very standard, such that they were included in a first draft by an attorney without prompting and no employee ever pushed back, then I would think this was somewhat less bad.
It would still be somewhat bad, because Anthropic should be proactive about not making those kinds of mistakes. I am confused about what level of perfection to demand from Anthropic, considering the stakes.
And if non-disparagement is often used, but Anthropic leadership either specified its presence or its form, that would seem quite bad to me, because mistakes of commision here are more evidence of poor decisionmaking than mistakes of omission. If Anthropic leadership decided to keep the clause when a departing employee wanted to remove the clause, that would similarly seem quite bad to me.
I think that both these clauses are very standard in such agreements. Both severance letter templates I was given for my startup, one from a top-tier SV investor’s HR function and another from a top-tier SV law firm, had both clauses. When I asked Claude, it estimated 70-80% of startups would have a similar non-disparagement clause and 80-90% would have a similar confidentiality-of-this-agreement’s-terms clause. The three top Google hits for “severance agreement template” all included those clauses.
These generally aren’t malicious. Terminations get messy and departing employees often have a warped or incomplete picture of why they were terminated–it’s not a good idea to tell them all those details, because that adds liability, and some of those details are themselves confidential about other employees. Companies view the limitation of liability from release of various wrongful termination claims as part of the value they’re “purchasing” by offering severance–not because those claims would succeed, but because it’s expensive to explain in court why they’re justified. But the expenses disgruntled ex-employees can cause is not just legal, it’s also reputational. You usually don’t know which ex-employee will get salty and start telling their side of the story publicly, where you can’t easily respond with your side without opening up liability. Non-disparagement helps cover that side of it. And if you want to disparage the company, in a standard severance letter that doesn’t claw back vested equity, hey, you’re free to just not sign it–it’s likely only a bonus few weeks/months’ salary that you didn’t yet earn on the line, not the value of all the equity you had already vested. We shouldn’t conflate the OpenAI situation with Anthropic’s given the huge difference in stakes.
Confidentiality clauses are standard because they prevent other employees from learning the severance terms and potentially demanding similar treatment in potentially dissimilar situations, thus helping the company control costs and negotiations in future separations. They typically cover the entire agreement and are mostly about the financial severance terms. I imagine that departing employees who cared could’ve ask the company for a carve-out on the confidentiality for the non-disparagement clause as a very minor point of negotiation.
It’s great that Anthropic is taking steps to make these docs more departing-employee-friendly. I wouldn’t read too much into that the docs were like this in the first place (as this wasn’t on cultural radars until very recently) or that they weren’t immediately changed (legal stuff takes time and this was much smaller in scope than in the OpenAI case).
Example clauses in default severance letter from my law firm: