Elon Musk has repeatedly referred to himself as a “free speech absolutist” and promised that on his Twitter even his “worst critics” would be welcome.
Now, Platformer’s Zoe Schiffer is reporting that Twitter has sent laid off employees “a legal notice warning them about a non-disparagement clause” in their separation agreements. And, the letter claims (ridiculously, and incorrectly) that the non-disparagement clause “applies to you whether you signed the agreement or not.”
The text of the non-disparagement clause is messed up as well:
In addition, consistent with applicable laws, the No Disparagement provision in Paragraph 7(c) prohibits you from making any written or verbal communications about the Company, any Releasee, the Company’s leadership team and management, Board of Directors, or products or services that are defamatory or disloyal, reckless, or maliciously untrue under applicable law including National Labor Relations Act standards.
I mean, the inclusion of the NLRA standards is just the cherry on top of this shit sundae, because the NLBR literally just weeks ago declared that employers may not offer severance agreements with non-disparagement terms.
Today, the Board issued a decision in McLaren Macomb, returning to longstanding precedent holding that employers may not offer employees severance agreements that require employees to broadly waive their rights under the National Labor Relations Act. The decision involved severance agreements offered to furloughed employees that prohibited them from making statements that could disparage the employer and from disclosing the terms of the agreement itself.
The decision reverses the previous Board’s decisions in Baylor University Medical Center and IGT d/b/a International Game Technology, issued in 2020, which abandoned prior precedent in finding that offering similar severance agreements to employees was not unlawful, by itself.
Today’s decision, in contrast, explains that simply offering employees a severance agreement that requires them to broadly give up their rights under Section 7 of the Act violates Section 8(a)(1) of the Act. The Board observed that the employer’s offer is itself an attempt to deter employees from exercising their statutory rights, at a time when employees may feel they must give up their rights in order to get the benefits provided in the agreement.
In some ways, this creates a kind of amusing situation: by having Twitter claim that the policy is under NLRA standards, and the NLRB saying that these clauses are not allowed… it could be read to mean that Twitter is admitting the entire clause is null and void.
But, of course, that’s not really what’s going on here. Twitter and Musk are likely relying on the intimidation factor and the assumption that most of the people he unceremoniously fired won’t be familiar with the recent NLRB ruling on this matter.
Meanwhile, let’s be clear: even without the NLRB ruling, the non-disparagement clause here is total bullshit. Things that are defamatory are already actionable under defamation law. “Maliciously untrue” seems like a weird misunderstanding of the actual malice standard, but is still covered by defamation law.
But “disloyal” and “reckless” are totally arbitrary nonsense, and not something you can police.
And the idea that this applies even to people who did not sign it is not how anything works at all.
It does, however, suggest (YET AGAIN) that rather than being supportive of free speech, Musk is yet another rich and powerful person with a fragile ego who can’t take even the slightest bit of criticism, and feels the need to intimidate people into silence.
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