Melissa Harris-Perry Bravely Refuses to Sign Gag Clause
It is a shame that MSNBC cut Melissa Harris-Perry’s show for many reasons, but most notably because we will miss the gender and racial diversity she brought to national cable news. Despite the depressing news about her show’s cancellation, I was happily surprised to see her mention on Twitter that she refused to sign a non-disclosure clause. She said, “One of the unintended consequences of salary inequity — harder to get us to take one of those non-disclosure payoffs huh? #freedomovermoney.”
Non-disclosure agreements or “gag clauses” are everywhere and nowhere at the same time. Many employees (and former employees) are pressured to sign them and, after they do, they suddenly find themselves barred from speaking out about their own experiences, their own lives, even about the non-disclosure agreement itself. Once that paper is signed, your story is no longer your own and, in many cases, you cannot even explain why the story was taken from you. While many non-disclosure agreements serve a legitimate purpose to protect trade secrets, oftentimes employers write these clauses entirely too broad.
Government agencies have seen how employers have abused these clauses to silence workers on a wide range of issues. Last year, the National Labor Relations Board (NLRB) wrote a 30-page memo explaining to employers what employment agreement language would violate labor law by intentionally or unintentionally inhibiting workers from collectively engaging in efforts to improve their wages, benefits or working conditions. The Securities and Exchange Commission (SEC) warned companies that they would be investigating non-disclosure agreements that inhibited employees from reporting securities violations to the SEC and then they actually took action against a company, KBR, for a clause that did just that.
I commend Harris-Perry for not signing the gag clause as I commend other workers out there who have refused to sign them. It is a hard thing to do. If the clause is in an employment agreement, it means you cannot take the job without signing it. If the clause is in a severance agreement, you just lost your job and you likely need the severance to pay your mortgage or rent. In either situation, it can be nearly impossible to weigh the costs of signing the non-disclosure agreement against the costs of not signing; simply put, many of us are not in the position that we can turn down the compensation offered by the employer or former employer in exchange for our silence.
After the National Whistleblowers Center illegally fired me and four of my co-workers for trying to form a staff union they presented us with a proposed severance agreement that included an exceptionally broad gag clause. The agreement said if we accepted the money, we could “not, criticize, disparage, or say or do anything that casts [the employer] in a negative light” to “any other person.” It also said that that once we signed, we could not even acknowledge the existence of the agreement.
There was no way I was going to sign the proposed agreement with that clause in it. Gag clauses go against everything I believe in about the rights of workers to question their bosses and they go against everything that I thought the National Whistleblowers Center stood for. I told them if they removed the clause, we could negotiate the amount of the severance. They refused. So, it was not careless drafting that created that gag clause. It was a calculated effort to silence their former staff. It is especially ironic for organization whose mission is to help workers speak truth to power. While no amount of money could buy my silence, it did help that my former employer did not offer much money in exchange for it. Despite the difficulties I faced during my 11-months of unemployment, I never regretted standing up for my beliefs; I hope that Harris-Perry feels the same way.
Fighting against gag clauses is an uphill battle because for the NLRB, SEC or other government agency to find them illegal they have to know about them first. The more employees refuse to sign these agreements the better. But in the meantime, we can demand that the National Whistleblowers Center lead by example. The Board of Directors should publicly state that gag clauses in severance agreements (or other employment agreements) are against the core mission of the organization and in violation of the National Labor Relations Act, and, therefore, will not be used by the National Whistleblowers Center in the future. They should also commit to not enforcing the gag clauses that my former coworkers signed.
It is not surprising that a company as large as MSNBC truly believed that they could convince a former employee, even one who they believed was a “challenging, unpredictable personality,” to stay silent about her experiences and criticisms of the company. After all, many companies get their way when it comes to non-disclosure agreements, simply because they have an advantage when bargaining over those agreements. But as Harris-Perry proved in an interview with CNNMoney, there is power in speaking out about the things that matter when she said, “They wanted me not to speak about MSNBC. I said no.”