"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.
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 …
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.
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
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.
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.
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?
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.
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.
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 ?.
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.
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.
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".