back to article Shareholders turn the screws on IBM and its gag orders

IBM shareholders at the IT giant's annual meeting last month endorsed a proposal to have the company produce a public report on the potential risks arising from its use of concealment clauses that constrain disclosure of workplace misconduct. Almost two-thirds (64.7 percent) of participating shareholders voted for the proposal …

  1. Pascal Monett Silver badge
    Thumb Down

    "there was (and is) no systemic age discrimination at our company"

    Mister LaMoreaux, the sheer number of lawsuits IBM has had on this subject is proof that your words are invalid.

    1. Little Mouse Silver badge
      Headmaster

      Re: "there was (and is) no systemic age discrimination at our company"

      "Mister"?

      (But upvoted anyway)

      1. Tom 7 Silver badge

        Re: "there was (and is) no systemic age discrimination at our company"

        Mister - a small insignificant container of water that when squeezed produces a smokescreen like fog.

        1. W.S.Gosset Silver badge

          Re: "there was (and is) no systemic age discrimination at our company"

          Or while we're dancing around languages:

          Mist is German for bull*shit.

          Hence mister.

          * any animal shit, really, but one feels the circumstances warrant and merit specificity.

          1. Tom 7 Silver badge

            Re: "there was (and is) no systemic age discrimination at our company"

            My Dad uses to have a book on the origin of uk words (auth Partridge?), as a teenager f**k was often referred to. It was an eye opener on a rainy day when you flicked through it bored. Butterfly, originally a Flutterby changed between the two names several times. Words come from other languages and this islands penchant for sarcasm changes the meaning of things regularly and a simple mistake by someone important can change the meaning of a word to something else altogether. Sounds silly but then the Spanish (Castillian) lisp was adopted because the royal line was so inbread their own faces didnt fit.

          2. TimMaher Silver badge
            Facepalm

            Re: "mist”

            Which is why Rolls Royce had to re-name their newly designed “Silver Mist”, sometime in the seventies.

            Or so I was told. I worked for a Germen company at the time.

    2. a pressbutton

      Re: "there was (and is) no systemic age discrimination at our company"

      All those lawsuits are for individuals - one person at a time

      So there can be no systemic discrimination

      Even though so many of them rhyme

      (I did not run out of words - Verse 2 is subject to an NDA)

    3. Lord Elpuss Silver badge

      Re: "there was (and is) no systemic age discrimination at our company"

      Without passing judgement one way or the other; the number of lawsuits in no way constitutes proof of any description. Don't make IBM's position stronger by contesting it with nonsense.

      1. W.S.Gosset Silver badge

        Re: "there was (and is) no systemic age discrimination at our company"

        It's the Chewbacca Offense.

  2. Tom 7 Silver badge

    How ironic it would be if shareholder needs got rid of NDAs

    They'd have to stop shareholders voting!

  3. Doctor Syntax Silver badge

    "an IBM spokesperson declined to comment."

    Obvious. He'd been gagged.

    1. Paul Crawford Silver badge
      Gimp

      Seems a lot of it about

      1. Tom 7 Silver badge

        Does it involve oranges?

        1. GuldenNL

          IBM blue rubber balls.

  4. imanidiot Silver badge

    It seems it's time to make either laws or get some legal precedent on NDA's not being able to limit certain things. Simply talking about a workplace experience, wages/rewards or the mere existence of an NDA are things that simply should never be forbidden. Talking about those can have very detrimental effects for exploitative employers and huge benefits for employees

    1. Anonymous Coward
      Anonymous Coward

      Agreed

      In the US, NDA's can even block cooporation with Law Enforcement. Responding to a subpoena compelling one to testify can result in forfeiture of settlement money.

      1. W.S.Gosset Silver badge

        Re: Agreed

        Bill Gates used similar in his early Windows wholesale licences to stymie the DoJ in their anti-trust investigations.

        The computer manufacturers' licence forbade them --on penalty of immediate loss of licence to bundle Windows and hence immediate loss of 99.9% of revenue-- to divulge any information about the licence to anyone, explicitly including cooperating with law enforcement, subpoenas, court orders, etc.

      2. Jimmy2Cows Silver badge

        Re: Agreed

        How does US law sit with failing to respond to a subpoena? If that's illegal, existence of non-coorperation clauses in an NDA are surely also illegal, and therefore unenforceable.

        Contract terms cannot compel illegal acts. At least not in civilised jurisdictions. I guess the problem is fighting armies of lawyers to prove such terms are unenforceable.

        1. a_yank_lurker Silver badge

          Re: Agreed

          A subpoena would invalidate the NDA.

      3. Peter2 Silver badge

        Re: Agreed

        Well that's easy to solve.

        We don't have that issue in the UK. We don't have that issue because while somebody could write a contract with the same clauses, the courts on our side of the pond is under the impression that they decide what contracts mean, and habitually delete any terms in a contract which they feel are illegal.

        A contract (which is what an NDA is) attempting to induce somebody to either lie or fail to appear in court in return for a monetary payment would appear to do a quick ABC through several serious criminal offences:-

        Attempting to pervert the course of justice

        Blackmail

        Contempt of Court

        Since the only way of getting the money back in such a case would be to take court action, i'd really be interested to see somebody bring a case in the courts in the UK demanding money from somebody because they complied with a court order to attend court and answer questions truthfully.

        The lawyer putting that court paper in would have a veritable death wish; Do you have any idea what a really pissed off judge can do?

        1. Tom 7 Silver badge

          Re: Agreed

          Well for now anyway. Given the hatred for Lefty Lawyers and traitorous Judges I can see it being overturned soon.

        2. W.S.Gosset Silver badge

          Re: Agreed

          Under UK law, any contract term which is illegal (eg, refusing to comply with a court direction) is automatically "null and void". No discretion.

          I believe the argument can also be made in court that the entire contract should be struck out on the basis of the illegal section(s). But this is at the court's discretion.

    2. aerogems Silver badge

      That's how it already is, at least to some degree. Any time a contract, including NDAs, is in conflict with state or federal law, the contract loses. If I witness some kind of illegal behavior in the workplace, no NDA can stop me from going to the proper authorities about it.

      Companies like IBM bank on people not knowing this and thinking that they can't go to the authorities or they'll be sued. It costs them maybe a few hundred dollars to have a lawyer draft up a generic NDA that they can have every employee sign, knowing full well the entire thing is a bluff. If even one person incorrectly thinks that they can't report illegal behavior as a result, it just paid for itself several times over.

      It's also generally the case that, as long as you have a good faith belief that some sort of illegal behavior was taking place, you can hand over any documents or other evidence to enforcement agencies. If the company CEO outlines a plan to push out anyone over the age of 40 from the company in the same email where they detail the company's new flagship product, you're completely in the clear to hand that over to the EEOC or state equivalent.

      Thanks to the former POTUS, Trump, who loves overly broad NDAs, we also have a few legal precedents deeming them unenforceable. You take your basic NDA to a lawyer, they'll probably tell you 90% of it is completely unenforceable.

  5. naive

    Lets hope the CEO of the Sinaloa cartel doesn't read this

    They would move their HQ to the USA, have a few attorneys make up NDA's, enabling them to do their business without any interference from the DoJ.

    What kind of legal system allows organizations to legally silence witnesses of crimes ?.

    1. Roland6 Silver badge

      Re: Lets hope the CEO of the Sinaloa cartel doesn't read this

      Looks like the legal systems of the USA and Russia have much in common...

    2. Robert Grant Silver badge

      Re: Lets hope the CEO of the Sinaloa cartel doesn't read this

      I don't think they're talking about crimes.

  6. aerogems Silver badge
    FAIL

    Legally Unenforceable

    As a general rule in the US, you can't enforce any provision of a contract that is unlawful. If I were a hitman for hire and took someone's money and didn't kill the target, it's not like they could take me to court about it and demand I refund their money.

    I know a lot of people probably assume these clauses/contracts are legal and enforceable and that's what companies are banking on by getting people to sign them, but they're not. At least insofar as they cannot legally stop you from talking about anything that was against the law taking place at the company. Especially not if you are taking your complaint to the proper enforcement agency for that particular issue. Like in the case of age discrimination, there's no way IBM could go after anyone for violating an NDA if they filed a complaint with the EEOC and told the investigator numerous details that might be considered trade secrets.

  7. a_yank_lurker Silver badge

    Good Luck Manglement

    The moneybags are getting worried that is not a good sign for the mangelment. While it technically has not been proven there is systemic discrimination at Itsy Bitsy Morons the sheer number of lawsuits alleging discrimination, illegally withholding commissions, etc. point to some serious ethical issues within manglement. The fact that many have been settled by manglement without even going anywhere near a trial probably bothers the moneybags. If these issues are allowed to fester much more they could take the company down in a rather spectacularly with the moneybags taking a bath.

    Manglement is relying on a person not taking the shyterly NDA to a legal beagle who would probably point out all the illegal and unenforceable terms in it.

    1. SImon Hobson

      Re: Good Luck Manglement

      Exactly, the shareholders are worried about what these NDAs are hiding - with the potential for it to cost them dearly. They'd rather know now, so they can do their own removal of the rotten bits (i.e. senior managers) proactively - in this case, "doing the right thing" conveniently overlaps with "doing the least risky thing for shareholders".

  8. TeeCee Gold badge
    Facepalm

    ...whether the biz intends to respond...

    ...declined to comment.

    That'll be "no" then.

  9. WokeUpThisMorning

    The shareholders attorneys should subpoena everyone that settled with IBM. They refuse to let anyone go to trial. They'll wait until the last hour and then offer cheap settlements. They are despicable. Rometty and Gherson should be jailed.

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