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To keep severance, worker must keep quiet

Q. My grandson lost his job and was offered a severance package. The company made him sign a legal document that said he will never speak negatively about the company, its services, or its leadership. He had to sign since he needs the severance check, but does this not go against his First Amendment right to freedom of speech? Can he not tell friends and prospective employers the real reason for losing his job, the company doing poorly due to poor leadership? Does this agreement hold up in court if the company finds out he is telling the truth to a potential employer?

A. The career paths of employees your grandson’s age will be littered with job changes and layoffs. Learning how to react and understanding the legal and professional ramifications will be important.

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Severance is not an entitlement. It is a financial agreement between employee and employer. Your grandson was given a financial settlement for signing a release that prohibits him from disparaging his former company or its executives. This is not intended to stifle free speech, but to protect the financial interest of the employee and brand of the employer.

I consulted with Valerie Samuels, partner at Posternak, Blankstein & Lund LLP in Boston. She said: “The agreement your grandson signed is valid, and he should comply with the terms. The First Amendment does not apply to this situation because it protects employees from government infringement, not private complaints by an individual about his employer. An employee who believes his employer is violating the law — for example, failing to pay wages or committing fraud — likely has protections under a variety of statutes, but there are procedures to address these concerns.”

As frustrated as your grandson may be, he will hurt himself more than his former employer by sharing details of his layoff. Employers don’t want to hear about what is wrong with his last company, they want to know what contributions he can make.

Your grandson will move on from this experience. It will make him a smarter, more marketable employee in the future.

Elaine Varelas is managing partner at Keystone Partners, a career management firm in Boston and serves on the board of Career Partners International.
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