i would assume that should say Director, Senior Officer. This was meant to be a talking piece
----- Original Message ---- From: Dan Rosenthal swatjester@gmail.com To: Wikimedia Foundation Mailing List foundation-l@lists.wikimedia.org Sent: Sunday, April 13, 2008 6:48:09 PM Subject: Re: [Foundation-l] Future board meeting (5-7 april 08)
No. For one thing, what is a "directory senior officer"? For another, it does not address independent contractors. For a third, it does not address the over-broadness of the "shall not...make any statement that....is derogatory of Employer". Provision IV's first clause is unnecessary, as the agreement would not supersede US laws anyway.
-dan On Apr 13, 2008, at 8:38 PM, Geoffrey Plourde wrote:
Is this better?
NON-DISPARAGEMENT AND CONSIDERATION. I. 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.
II. 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.
III. 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.
IV. No provision of this agreement shall be considered to supersede the whistleblower protection laws of the United States of America and the whistleblower protection policy of this Organization.
V. No provision of this agreement shall be considered to preclude complaints to appropriate supervisory personnel
----- Original Message ---- From: Dan Rosenthal swatjester@gmail.com To: Wikimedia Foundation Mailing List <foundation-l@lists.wikimedia.org
Sent: Sunday, April 13, 2008 5:15:16 PM Subject: Re: [Foundation-l] Future board meeting (5-7 april 08)
Agree. That's a godawful policy. For instance, "shall not....make any statement that ....is derogatory of employer" means that they cannot say "Wikimedia Foundation is not good at this". The reciprocal agreement is just as bad. For instance, it only prevents "directory senior officer[s] of Employer or member[s] of the Board of Trustees" from criticizing the employee. It does not prevent, for instance, independent contractors from being critical and disparaging of employees, something that, according to some accounts that I've heard, has been an issue before.
-Dan On Apr 13, 2008, at 7:40 PM, Thomas Dalton wrote:
- begin quote -
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.
- end quote -
That's lawyerspeak for "You mustn't say bad things about your boss (and vice versa)." I would never have signed that. It doesn't even acknowledge the Whistleblowing policy, which is directly contradicts (presumably that policy takes precedence, but I would have expected it to be made explicit). The Whistleblowing policy only applies if what you're complaining about is actually illegal. If you just think your boss has been doing an appalling job, you're not allowed to do anything about it. Saying untrue, or purely hurtful things is clearly unacceptable, but anyone should be able to stand up and tell the truth as they see it.
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I'm guessing there aren't too many folks familiar with United States employment law among the folks debating and speculating on this list. I submit that this is probably not the sort of thing we want determined by a consensus of amateurs. Lots of people don't like ND agreements, but they don't like binding arbitration, non-compete and non-disclosure agreements either. Even so, they are fairly common and effective. As a matter of fact, I think than an ND for the Board is somewhat less unusual than an ND for employees.
Perhaps the wording of this particular agreement is hasty or inelegant - Board members not at all familiar with American law might reasonably be advised to get independent legal advice before signing binding agreements. (No disparagement [heh] of Mike intended, but he represents WMF and not the Board members individually). Elements of signed agreements like this are somewhat routinely dismissed in court (fairly strict rules on non-compete agreements, limits on the scope of non-disparagement and non-disclosure agreements, etc.), but its still a good idea to know what your rights are and how agreements like this are commonly used in corporations in the US.
Nathan
Nathan wrote:
I'm guessing there aren't too many folks familiar with United States employment law among the folks debating and speculating on this list. I submit that this is probably not the sort of thing we want determined by a consensus of amateurs. Lots of people don't like ND agreements, but they don't like binding arbitration, non-compete and non-disclosure agreements either. Even so, they are fairly common and effective. As a matter of fact, I think than an ND for the Board is somewhat less unusual than an ND for employees.
Thank you for the calm, measured response. Can I ask, however, that we avoid confusing abbreviations? An ND agreement or NDA normally refers to a non-disclosure agreement (another much-despised yet much-used contract). While such agreements in business relationships sometimes also touch on non-disparagement, they're primarily focused on confidential information, which is a bit different issue.
--Michael Snow
You're right, of course - I thought I could get away with being lazy with my usage because of the context. Context makes all the difference with these sorts of things - for instance, in my line of work, NDA typically stands for "new drug application."
Something interesting that this subject brings to mind - if these agreements were not routine with staff until recently, I wonder how there came to be one with Ms. Doran. Could be a holdover from the temp contract, I suppose, but if it was negotiated directly that would put a slightly different spin on the effect of the agreement during the controversy awhile back. Not important to have that addressed, I'd say, but the whole issue between WMF and Doran does point up the role an agreement of this sort could have in the future.
Nathan
On 4/14/08, Michael Snow wikipedia@verizon.net wrote:
Nathan wrote:
I'm guessing there aren't too many folks familiar with United States employment law among the folks debating and speculating on this list. I submit that this is probably not the sort of thing we want determined by a consensus of amateurs. Lots of people don't like ND agreements, but they don't like binding arbitration, non-compete and non-disclosure agreements either. Even so, they are
fairly
common and effective. As a matter of fact, I think than an ND for the
Board
is somewhat less unusual than an ND for employees.
Thank you for the calm, measured response. Can I ask, however, that we avoid confusing abbreviations? An ND agreement or NDA normally refers to a non-disclosure agreement (another much-despised yet much-used contract). While such agreements in business relationships sometimes also touch on non-disparagement, they're primarily focused on confidential information, which is a bit different issue.
--Michael Snow
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Nathan wrote:
Something interesting that this subject brings to mind - if these agreements were not routine with staff until recently, I wonder how there came to be one with Ms. Doran. Could be a holdover from the temp contract, I suppose, but if it was negotiated directly that would put a slightly different spin on the effect of the agreement during the controversy awhile back. Not important to have that addressed, I'd say, but the whole issue between WMF and Doran does point up the role an agreement of this sort could have in the future.
It should not require a formal agreement before we can treat people like Doran with fundamental respect.
Ec
Michael Snow wrote:
Can I ask, however, that we avoid confusing abbreviations? An ND agreement or NDA normally refers to a non-disclosure agreement (another much-despised yet much-used contract). While such agreements in business relationships sometimes also touch on non-disparagement, they're primarily focused on confidential information, which is a bit different issue.
On the matter of abbreviations in an increasingly querulous environment it may be appropriate to point out that some of us were around when ND stood for "Nuclear Disarmament". :-)
Ec
On the matter of abbreviations in an increasingly querulous environment it may be appropriate to point out that some of us were around when ND stood for "Nuclear Disarmament". :-)
And in the case of licenses, it often stands for "no derivatives". Acronyms often have multiple meanings in different contexts - the issue here is that the acronym has multiple meanings in the same context.
On 14/04/2008, Nathan nawrich@gmail.com wrote:
I'm guessing there aren't too many folks familiar with United States employment law among the folks debating and speculating on this list. I submit that this is probably not the sort of thing we want determined by a consensus of amateurs. Lots of people don't like ND agreements, but they don't like binding arbitration, non-compete and non-disclosure agreements either. Even so, they are fairly common and effective. As a matter of fact, I think than an ND for the Board is somewhat less unusual than an ND for employees.
I understood noncompetes were legally void in California in any case.
- d.
Our article on the subject would seem to say so:
http://en.wikipedia.org/wiki/Non-compete_clause#Enforceability_in_the_State_...
"Unlike the situation in other states, non-compete agreements are illegal in California and against public policy." It goes on to list some exemptions, none of which apply to the WMF.
-Chad
On Mon, Apr 14, 2008 at 8:39 AM, David Gerard dgerard@gmail.com wrote:
On 14/04/2008, Nathan nawrich@gmail.com wrote:
I'm guessing there aren't too many folks familiar with United States employment law among the folks debating and speculating on this list. I submit that this is probably not the sort of thing we want determined by a consensus of amateurs. Lots of people don't like ND agreements, but they don't like binding arbitration, non-compete and non-disclosure agreements either. Even so, they are fairly common and effective. As a matter of fact, I think than an ND for the Board is somewhat less unusual than an ND for employees.
I understood noncompetes were legally void in California in any case.
- d.
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Similarly, many states (california included) void binding arbitration clauses in employment contracts as contracts of adhesion (due to the disparity in power between the parties), and thus unconscionable. (I bring that up, because, like non-competes, it was an example provided).
-Dan On Apr 14, 2008, at 9:49 AM, Chad wrote:
Our article on the subject would seem to say so:
http://en.wikipedia.org/wiki/Non-compete_clause#Enforceability_in_the_State_...
"Unlike the situation in other states, non-compete agreements are illegal in California and against public policy." It goes on to list some exemptions, none of which apply to the WMF.
-Chad
On Mon, Apr 14, 2008 at 8:39 AM, David Gerard dgerard@gmail.com wrote:
On 14/04/2008, Nathan nawrich@gmail.com wrote:
I'm guessing there aren't too many folks familiar with United States employment law among the folks debating and speculating on this list. I submit that this is probably not the sort of thing we want determined by a consensus of amateurs. Lots of people don't like ND agreements, but they don't like binding arbitration, non-compete and non-disclosure agreements either. Even so, they are fairly common and effective. As a matter of fact, I think than an ND for the Board is somewhat less unusual than an ND for employees.
I understood noncompetes were legally void in California in any case.
- d.
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