On 4/14/08, Erik Moeller erik@wikimedia.org wrote:
There's a difference between "speaking out" and making insinuations and personal attacks. The non-disparagement agreement begins an important conversation about this difference, and leads it towards a social and legal agreement. I'm sure you agree that none of us have the desire to trash talk each other in public; when we criticize, we want to be judicious and fair, and we want to be treated in the same way. The agreement puts this into clearer language that we can all commit to. This is the relevant section from the agreement signed by staff members:
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NON-DISPARAGEMENT AND CONSIDERATION. Both Employer and Employee agree that the free and open exchange of ideas and information among employees, contractors, and agents of the Foundation is to be encouraged. Employee agrees that, during the term of employment and for three years thereafter, Employee shall not, in any communications with the press or other media, or any customer, client or supplier of company, or any of company affiliates, ridicule or make any statement that personally disparages or is derogatory of Employer or its affiliates or any of their respective directors, trustees, or senior officers. Additionally, and in consideration of Employee's covenants in this agreement, no directory senior officer of Employer or member of the Board of Trustees of the Employer will, during the same time period, personally criticize, ridicule or make any statement that personally disparages or is derogatory of employee.
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I think that's a reasonable definition. I'm sure it could be improved further. But we should not excuse malicious attacks as a "free speech issue". They are not; they are simply inappropriate behavior that nobody associated with the organization should engage in. Furthermore, as has been pointed out, this agreement works both ways; it protects both parties to it.
I am curious how closely the definition matches some usual standard formulation of similar agreements.
As to the very text itself, I do have some very strongly felt questions I would love to see clarified. For if I read it closely, and take it to mean what it would clearly seem to imply; that though working both ways, there is a significant imbalance to it.
Now it may be that the imbalance is intentional, perhaps mandated by law, or custom, or just simply the standard way those agreements are formulated. And in fact, in the case of people who are payed employees, I do in fact think it may not be unreasonable there is a this imbalance (which some one who would wish to be more blunt, might call "unfairness"), because there is this old Finnish saying that you sing the songs of the person whose bread you eat.
To my mind though, the case is very very different in the case of people who volunteer their time, and are doing the work out the love for our cause only, without recompense for the burden of responsibility and time expended. Personal sacrifices made. In that situation this lack of balance is very troubling to me.
Let me spell out the imbalance I see.
Let us use generic terms "organisation" and "individual" here, even though of course in practise in the organisation naturally the hypothetical disparaging would of course come from the mouth of an indvidual, but an individual still in the organisation, nevertheless.
On the individual side, let us say hypothetically a removed or resigned board member (which the case would be, does not really signify in illustrating my point), went and spoke to any of the proscribed audiences in a manner not allowed by it, what entity that person is directed not to offend against, is very sweeping, clearly any functionaries or the organisation as a whole, I really cannot see how the text can be parsed any way.
It reads very differently, when the roles are reversed. In that case the only party protected is defined as narrowly as a laser beam. And I quote:
"..ridicule or make any statement that personally disparages or is derogatory of employee."
This leaves a loophole wide as a barn door. Let us again hypothesize a problem, small or large. In that case nothing would preclude the organisation issuing a statement to the effect of for instance: "there have been mistakes made, this and that occured, we cannot give any details, but rest assured the people responsible are no longer with the organisation", provided of course that the statement was phrased in a way that it obscured who the responsible person was.
But in that situation, though nothing in the agreement had been breached, and infact the situation would have repaired much of the image of the organisation, *all* the people who no longer were with the organisation but could by the obscurational nature of the statement conceivably have been the guilty party, would be under a dark cloud.
I really cannot express quite how strongly I feel this would be unfair to some person who had poured their heart and soul, their lifeblood into making the work happen in the organisation, and this is regardless of whether problem had been unintentional or by intent, the imbalance, frankly, is abominable.
Having agreements like this in place, beyond stimulating conversation, is also a matter of organizational scalability. We went from zero to 15 employees in three years; the Board itself has expanded and may continue to do so. We're not a small club that can be run primarily by internal consensus -- policies, procedures and agreements exist to mitigate risks.
I hope do not think I am critisizing you personally. I genuinely have no idea from whose hand the document is, whether is is taken from some standard template, whether it was written by a staff member, a board member or an outside contractor. I just feel I had to bring that out there.
And I repeat, I do not see anything egregious about applying this kind of agreement to those who are given money for the work they do, and could imagine something very close like it might be fairly standard. Even if there might be a cloud that the employees who no longer were foundation employees, might be under, psychologically, the vital thing for them, would be that their employability would not be harmed, and that is what is often the import of such agreements from their point of view.
Jussi-Ville Heiskanen, ~ [[User:Cimon Avaro]]