Dan Rosenthal wrote:
And yet, a contract is a pledge of sorts, but its enforceability is supported by law. However, to gain that enforceability, the contract must be sufficiently certain. Given that the key focus of that non- disparagement agreement is "disparagement", it would seem critical that disparagement be defined. And yet, it's not. It's suitably vague. That's hurting the value of what a pledge is: a promise that something will (or will not) happen. If that act or omission is not actually defined (such as in this case, with disparagement being the act), then you simply cannot make that kind of promise. On top of that, for a promise like this to be worthwhile, it must be equitably applied to members of the group (i.e. all members of the board, or all members of the staff, or all of both). Picking and choosing who falls underneath the pledge/contract diminishes its value by allowing loopholes. For instance, suppose all the staff and board signed this agreement, and one member (board or staff, doesn't matter) leaves disgruntled. Under the text of that agreement, that member does not have any assurances that an independent contractor for the foundation won't slam them (since said people wouldn't be covered under the agreement). Given this discrepancy, it's feasible to see a situation where this agreement as written works far more to the benefit of the foundation than to the benefit of an employee/trustee who leaves. And that's not a good thing.
-Dan
Nod.
Regarding (who gets) benefits of the agreement, it seems frequent that the non-disparagement agreements are typically signed at the moment when an employee quits an organization (be it because he resigns or is fired). The future-ex-employee can choose to sign the agreement or not. Agreement to sign may come with a financial compensation for the employee.
Ant
On Apr 14, 2008, at 1:43 PM, Brion Vibber wrote:
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Florence Devouard wrote:
Last, you mention adulthood. Would not it be more "adult" precisely to pledge to respect others and their activity, to pledge to always try to have our mission in mind, to follow common values shared by the group; to respect a code of conduct and promise to inform in conflict of interests you might be submitted to; as opposed to be maintained under a legal threat ?
In a civilized society, the legal system is where we go to resolve our disputes when we find we *couldn't* work them out amicably in person like we would prefer to.
Contracts are a formal way to make agreements -- pledges -- written down, so that *if* a dispute occurs in the future, we can all sit down and point at the agreement, reason about it, and if it ends up needing to be decided with assistance from the law, the judge will have a chance of figuring out what it is the parties agreed to.
Being an adult is about responsibility, and that means planning for contingencies.
That's why we put our money in banks instead of under the mattress, why we get health insurance instead of hiding from the doctor, and why we write down contracts instead of making all agreements under the table.
- -- brion
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