From non-competes to non-disparagement agreements, your employer has plenty of ways to lock you down even after you leave.
You’d think that when a job is over, it’s over. You quit or you’re fired or laid off and then that’s that. Except that’s not always what happens. A lot of the time, even after you’ve cut ties, your former employer maintains some control over what you can say or do. It’s like a toxic ex you can’t warn anyone about because they might sue you, and who gets a say in who you go out with next.
It’s true that at the current moment, swaths of workers are more in the driver’s seat than they have been in years, thanks to a hot labor market that’s driven wages up, provided some people mobility, and given workers more leverage against their employers. But work hasn’t changed as much as some more optimistic headlines might suggest, and many of the fundamental power dynamics remain.
When you take on a new job, it’s often still a my-way-or-the-highway situation with your employer, and not just while you’re working your 9 to 5. Once you leave, companies have mechanisms such as non-compete clauses and non-disparagement agreements that make your post-work life a little bit harder. Much of the time, they don’t enforce those mechanisms, but the threat that they might gives them power.
I recently spoke with Peter Shamshiri, a former employment lawyer, about all the ways your boss keeps control of you even if they’re no longer your boss. Shamshiri is a host of two podcasts, If Books Could Kill, about airport bestsellers, and 5-4, about the Supreme Court. The latter podcast, 5-4, lost him his job last year when the higher-ups found out he was on it (he’d previously been anonymous). Our conversation, edited for length and clarity, is below.
It feels like when your company fires you or you quit, they should really not be able to have any more control over what you do. But that’s not the case, right?
There are a couple of ways that companies can maintain contractual control over you after your employment ends. One is that you sign something during your employment that applies to your post-employment period. So you will sign a document that delineates all these obligations you have as an employee, and some of them implicitly or explicitly stretch beyond the termination of your employment.
The other one is you agree when you part with the company to certain terms that include restrictive covenants — so non-competes, trade secret agreements, non-solicitation, things like that. In exchange for severance, for example, you’d be agreeing to that stuff. It’s still the company leveraging their position to get you to agree to restrictive covenants after you’re done with them.
So if Vox axes me tomorrow, which I hope they don’t, there are probably definitely rules somewhere about what I can say about them or whatever?
Most likely, you have at some point signed something saying that you will agree to certain levels of confidentiality with respect to their proprietary information, their trade secrets. It’s quite possible that that agreement also extends to you going to a competitor within a set period of time or you soliciting Vox employees once you are at a competitor, for example.
A lot of large companies will, essentially, when someone is onboarded, hand them a piece of paper and say, “Hey, to come work here, you need to sign this.” And it has all of these terms, and some of them will stretch beyond their employment, which could literally be years, decades in the future at the time of signing. People sign because it’s a prerequisite for maintaining the job.
Whenever I start a new job, I think, “Oh, I should look through this,” and then it’s like, “What am I going to do? Say no?” Is it possible to negotiate?
You may be able to negotiate yourself out of certain restrictive covenants if you are of particular import or the company is a little bit smaller. But if you’re at a large enough company, they’re not going to set the precedent of individually negotiating with people on this stuff. They’re just going to say, “Sign it or turn down the job.”
To get into specifics, let’s talk noncompetes a little. Those are the clauses that say an employee can’t work for a competitor. I feel like a lot of people have come across them when looking for a job, or you hear the horror stories of, like, restaurants using them. How are they even allowed?
Well, they’re not allowed everywhere, and I’ll get to that in a second.
The purpose of them generally is to try to protect company secrets. When you’re an employee, the company is trusting you with their proprietary and confidential information, and if you go over to a competitor, all of a sudden, the competitor has access to this stuff. Now, what’s odd about that is most companies will have you already agree to maintain confidentiality, to maintain the secrecy of their trade secrets. So the noncompete is substantively duplicative of that. The reason companies use that is because if someone goes to a competitor, it’s hard to figure out if they’ve spilled the beans on company secrets. So the easy solution is just to prevent them from going to the competitor altogether.
Almost all jurisdictions have restrictions on these. They need to be limited in duration, meaning maybe six or 12 months after you leave, but not beyond that. They need to be limited in their geographic scope. A lot of companies limit them by industry or even specifically name competitors that you can’t go to. Under California labor laws, you cannot use noncompetes. The FTC has proposed a rule to ban them. They say that the cost to employees is something like $300 billion a year.
The restaurant industry is a great example of how and where these can be abused, because it’s just the Wild West out there. I don’t think that any judge in most jurisdictions would hold up a noncompete in the restaurant industry, but no one’s going to lawyer up over a restaurant job and try to figure that out. So, they’re just being used as intimidation, essentially.
Years ago I had a friend who basically didn’t take a job because of a noncompete. The fear was like, well what happens if it doesn’t work out? You can never work in your area for the next year?
That’s what’s so bizarre about it. Say you have a career in selling life insurance, and they tell you in your contract you can’t go over to a competitor. What exactly are you supposed to do? You’re being blocked out of the only industry where you have expertise. They’ll often say it’s only within a 100-mile radius. But what does that tell you? You can’t work at a company in the industry that you’re familiar with, in the city that you live in, or anywhere nearby. If you want to move across the country, then you can do it, or if you totally want to switch careers, you’re good.
It doesn’t make sense, and that’s why there’s been a push to limit these, to outlaw them altogether. The legitimate uses of this are like 5 percent of the reason that companies use them. They are used to intimidate employees, to keep employees in their roles and make them nervous about where they go next. Frankly, they prevent other companies from coming over and hiring too many folks so that you have legal leverage when companies try to do that.
In finance, isn’t it the case that sometimes employers will pay you to not do anything for six months or something? You get “garden leave.”
Garden leaves are relatively rare. In certain industries where the pay is high, employees have a little more leverage in general, so they can say, fine, I’m at JPMorgan, I won’t go over to Goldman, but I want my six months of pay right then. If you’re serving tables, then you’re on your own. Essentially, noncompetes are more effective the more financially unstable someone is.
Are noncompetes even enforced though?
Almost never. It’s a conversation that will occasionally happen when higher-level folks may come from one company to another between legal departments, but these things go to court once in a blue moon.
It’s a bluff that employees can often call, but a) you need to know that, and b) you’re still running a risk. If a company feels like dragging you into court over this, at the very least, it’s going to make you miserable.
What about nondisclosure agreements, the contracts that say what people can’t say about their employers or former employers?
I would say that NDAs are a little bit distinct. I wouldn’t put them in the same bucket as most of these post-employment restrictive covenants — trade secret protections; noncompetes; non-solicitations, meaning you can’t solicit colleagues to come join you at a new company; non-disparagement agreements, meaning you can’t say anything disparaging about the company; and non-interference provisions, which means you can’t go try to intercept your old company’s clients.
NDAs tend to be limited to specific circumstances. So if you’re a lawyer or a finance person, you’ll often sign NDAs when you’re on a confidential deal. The controversial use of NDAs is: Okay, hey, you were harassed during your time at our company, we will compensate you in some way and in exchange you sign this NDA so we don’t have a PR problem here. We’ve seen more restrictions around that recently, especially in the sexual harassment context. That’s not something that would generally be part of your post-employment suite of obligations by default. It’s usually circumstantial.
What about non-disparagement agreements? Like, people have to promise not to say anything bad, even though they’ve got plenty of bad things to say?
Non-disparagement has got to be the most bizarre of the post-employment restrictive covenants, and they’ll often apply during employment too.
“I won’t say anything mean at the company,” at a certain high level, if you’re an employee, might make some sense. If you’re a Vox employee and you go on Twitter and say, “You know, I think Vox sucks, just like, substantively, I think the coverage is awful.” I think what the company would say was, well, do we really have to allow our employees to say that the product is awful, for example? On the other side of that, is there literally anyone who doesn’t violate this? Maybe I’m hanging out with a cynical crowd, but I don’t know anyone who has never said something a little bit disparaging about their employer.
The way that these operate is that because their scope is so broad, if you get laid off, for example, and vent about it on social media, which is a relatively human experience and human reaction, all of a sudden, your company can claim that you violated non-disparagement. If part of your severance package is non-disparagement, what they’re saying is, “We don’t want to hear about this on social media.” And your ability to criticize your employer, even in ways that are substantively true, is limited.
What’s different about defamation is that what you say has to be false for it to be defamation. If you say something true, that’s not defamation. People can accurately relay what happened to them at a company, and if the company says that that’s disparaging, that that would hurt their reputation, you still violated the non-disparagement clause, even though you didn’t tell a lie.
So if I lose my job tomorrow and go to Twitter and say “this person doesn’t do their job” or something, and that’s true, would the repercussions be that the company takes away my severance? Can they sue me?
If we’re talking about a severance agreement you violated, the agreement itself would tell you what the damages are. At the very least, they would try to seek an injunction telling you to stop, that’s pretty minimal. Most of them have outlined monetary damages — say either you’re going to pay back the severance or you’re going to pay back some set amount of damages.
It depends on the contract, but companies have a lot of options available to them. Generally speaking, and I’m being very general here because there are different cultures, it’s rare, even with a violation, to see someone go after an already-paid severance just because the PR can be so brutal. But they maintain that right, and that’s the whole point — all the risk is in the employee’s court. They are chilling the ability of the employee to speak confidently and freely about their experience.
Can I sue my employer? What is a forced arbitration clause?
That’s basically saying that if there’s a dispute about your employment, we’re going to arbitrate it, we’re not going to go to court. Arbitration is much more favorable to employers — they win more frequently, the costs are lower, it just sucks for employees. But that’s another thing that’s frequently buried in your employment contract — you’re signing away your ability to sue in court. Though I think “woke” employers have moved away from this in the last couple of years.
What if someone’s employer, say, committed a crime? With Theranos, some employees knew there was a problem and were afraid to speak out because of NDAs and non-disparagement agreements, right?
Technically, there are carve-outs — most agreements say you have the right to report things to certain government agencies, etc. But Theranos is a good example of how an aggressive legal team can make that irrelevant. You had employees being like, “Hey, this seems like maybe it’s fraud,” and you had some of the best lawyers in the country coming down on them with threats of litigation. Even if you’re technically, legally in the right, the whole point of these is for the company to maintain leverage to squeeze you if they want to.
In most situations, if the company is violating the law, you are legally allowed to talk about that and to escalate that to regulators. But is being legally in the right going to save you when you have David Boies knocking on your door and pointing to your NDA and threatening litigation?
So I guess the big overarching question here is, why are we like this? Or rather, why are companies allowed to behave like this? You quit or you’re laid off or fired, and they still have all this control even though you basically have no relationship anymore?
We are a country and a society that worships contracts as a method of doing business. This is something that, a century ago, the Supreme Court was holding up as a foundational element of our society, during the Lochner era, where they were upholding all these brutal labor practices and saying we should allow people to contract to whatever they want. That era is over to some degree — labor regulations kicked in in the ’20s and ’30s and exist to some degree to this day, but I think the worship of contract is what brings us here. The idea that someone can’t agree to something on their own terms, even if the leverage and the power dynamics are completely out of whack, Americans have a hard time with that. That’s why stuff like this is so prolific.
There’s also a real argument that much of this is anti-competitive. These restrictions are preventing market forces from maximizing their efficiency to some degree, right? You can’t go over to another employer, you can’t hire away your former colleague, you can’t try to convince our clients that they should come follow you to the new company. All of these things are anti-competitive, they’re not in the spirit of market capitalism, and yet they are extremely common.
Like if I want to steal all of your clients and I’m better than you, maybe I should be able to.
Right. If you have a pitch to the client to come join you, why exactly shouldn’t that be allowed? It’s hard to make the argument from the broader economic perspective.
We live in a world that’s constantly trying to sucker us and trick us, where we’re always surrounded by scams big and small. It can feel impossible to navigate. Every two weeks, join Emily Stewart to look at all the little ways our economic systems control and manipulate the average person. Welcome to The Big Squeeze.
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Have ideas for a future column or thoughts on this one? Email emily.stewart@vox.com.
This painful, mosquito-borne virus could spread even more if new innovations can’t scale.
Break-bone fever. Break heart fever. Seven-day fever. They are all names for the painful — often debilitating and sometimes deadly — mosquito-borne disease called dengue fever.
Dengue can cause high fever, nausea, rash, body aches, and stiff movements, and can leave patients suffering from depression and fatigue in its wake.
Dengue has been around since at least the 17th century, but cases of the infection skyrocketed in the last two decades — from only a little over 505,000 cases in 2000, to 5.2 million cases in 2019. Today, half the world’s population — who live in areas where Dengue-carrying mosquitoes are prevalent — is at risk of the illness. While dengue is already endemic in 100 countries, new regions are reporting cases of the virus every year, thanks to travel, trade, urbanization, and climate change expanding the range of the mosquitoes that transmit dengue.
In March, Sudan, a country currently embroiled in a civil war, experienced its widest outbreak of the disease and detected dengue fever for the first time on record in its capital city of Khartoum. At the same time, Argentina reported “elevated” dengue fever activity across the country.
While dengue fever isn’t as deadly as other mosquito-borne viruses — such as Japanese Encephalitis, a dengue-related virus found in southern and eastern Asia — large outbreaks can quickly overwhelm health care systems, worsening the toll of other illnesses and medical problems. “It’s one of those rare diseases that impact families, impacts communities, and impacts the country-level health systems,” said Derek Wallace, a physician who is the dengue vaccine program lead for the pharmaceutical company Takeda.
But even as the threat of dengue grows, new developments over the past decade — including a recently approved vaccine and an initiative to infect mosquitos with a virus-resistant bacteria — could mean that dengue eradication is on the horizon.
“I think one of the terrible things about dengue, if you live in an endemic transmission area, is you can’t really protect against it,” said Scott O’Neill, founder and CEO of the World Mosquito Program, a nonprofit aiming to eliminate mosquito-borne illnesses. “When you live in a situation where you can’t control your exposure, that can be quite a frightening thing, and many people live with a lot of fear around diseases like dengue and Zika, and what it could do to their children or to their family.”
What is dengue?
Dengue fever and many other vector-borne viruses — including chikungunya, Zika fever, and yellow fever — are usually transmitted via the bite of the tropical Aedes mosquito. This mosquito prefers to live near and feed on humans, and can easily pass these viruses from an infected individual to others in the population. In the case of dengue fever, mosquitos are the vector — the living organisms that can spread infectious pathogens between humans — but other common disease-spreading vectors are ticks, flies, and fleas.
And since dengue fever symptoms normally do not appear until four to 10 days after infection, people often go about their normal life, going outside, and exposing themselves to mosquitos. When a mosquito bites an infected individual, it will then carry that virus and pass it on to other people via its bite.
“Sometimes people actually have asymptomatic disease. They don’t even know that they had dengue,” said Ashley St. John, an associate professor at Duke-NUS Medical School who researches vector-borne pathogens like dengue. “That’s a major way it spreads is through people who don’t realize that they’re infected still going about their daily routine, and being in an environment where mosquitoes can continue to transmit the virus.”
Unlike other vectors, the Aedes mosquito thrives in urban environments since it can breed in very small quantities of water, such as the water pooled in a leaf, said St. John. As more people live in urban areas, the risk the Aedes mosquitos pose — given their ability to thrive in populous communities— grows.
“Another aspect that goes hand-in-hand with it is really human mobility,” said St. John. “Overall, we’re traveling a lot more than we used to. Travelers are a major group who are at risk for exposure to dengue when they arrive in some of these dengue-endemic regions.” When a traveler is exposed to dengue in an endemic region, they risk bringing the disease back to their community.
Dengue fever causes a range of mild to severe symptoms, but one of the most concerning is plasma leakage, or when fluid leaves the blood vessels and enters the lungs or abdomen. This deadly condition occurs in only a small portion of the annual half a million dengue-related hospitalizations, but treatment for the problem — IV fluids — is not foolproof, said Wallace. If too much IV fluid is given to a patient, it can drown the lungs and send them into respiratory distress. This life-or-death balancing act often plays out over an approximately seven-hour period following an infected individual’s fever breaking.
The primary reason scientists and researchers struggled to make progress on dengue prevention and treatment methods is because there are four different serotypes — or variations — of the virus that cause dengue fever. That essentially means that dengue fever behaves like four different viruses.
When someone is infected with one of the four dengue serotypes, they develop antibodies that help them beat the infection and protect them against future infections of the same serotype. But, unlike many illnesses, dengue’s serotypes are so different that the antibodies that protect against one serotype of the virus may not protect against the other three, said St. John.
Sounds a little bit like another virus circulating around: Covid. Between omicron, delta, and beta, Covid had many different variants, and genetic diversity, said David Martinez, a co-author of a 2020 study on the diversity within dengue serotype genomes and an assistant professor of immunobiology at the Yale School of Medicine. “Vast genetic diversity is certainly out there for many different viral families. So this is not unique to dengue,” he said. “But within the flaviviruses [vector-borne RNA viruses] that can infect humans and are actually a major problem in human populations, then dengue does seem to be a bit more unique in that regard.”
The challenge with a dengue vaccine
There is still no treatment to counter the dengue virus itself, and there is no universally available prevention method.
Instead, the World Health Organization (WHO) recommends that infected individuals rest, hydrate, and take over-the-counter pain relievers — treatments that can address symptoms. To prevent infection, WHO suggests avoiding mosquito bites by wearing full-coverage clothing, sleeping with insect-repellent-treated nets, and installing window screens.
But no one can stay indoors or under a mosquito net forever — which is why researchers have for decades been working on an effective dengue vaccine.
In 2015, Mexico approved the first dengue vaccine, Sanofi Pasteur’s Dengvaxia. At first, health experts welcomed the shot, given it was the only available medical prevention measure, but, two years later, after at least 11 countries approved it, concerns began to arise around its safety for those who had never been infected with dengue before.
In most types of viral infections, antibodies protect someone from developing severe disease. But dengue can act differently, essentially “hitching a ride” on antibodies and using them to enter and infect healthy cells, said Martinez. That’s why a strong immune response — where antibodies are produced — is not always beneficial, and instead can increase the risk of severe disease.
An analysis by Sanofi, WHO, and partnered researchers of long-term data showed that individuals who were never infected — seronegative people — were more likely to develop a severe reaction to a first-time infection if they received the Dengvaxia vaccine. The shot contains a live, weakened virus that teaches a recipient’s body to produce antibodies, which is also similar to how the chickenpox and measles vaccines work. (Dengvaxia uses a genetically engineered yellow fever virus to create this response.) But some researchers believe that because antibodies can help dengue infect cells instead of fight the virus, first-time dengue infections after the vaccines become more similar to reinfections, which are more likely to be severe.
In response, Sanofi updated its guidance for the shot in 2017, recommending the vaccine only be given to those with a confirmed prior dengue infection, or seropositive people. But the damage was already done — in the Philippines, where the vaccine was rolled out as part of a national campaign, parental confidence in vaccines plummeted, from 82 percent in 2015 to 21 percent in 2018.
Aside from the Dengvaxia vaccine (which is still approved in over a dozen countries, including the US, for those with a laboratory-confirmed prior dengue infection), there are approximately five other dengue vaccines in development as of 2018. The Japanese pharma company Takeda’s vaccine, TAK-003, is showing promising results. It’s a live-attenuated vaccine like Dengvaxia’s shot, but rather than using the yellow fever virus as its backbone, it uses the dengue serotype 2 virus. Takeda’s series of shots have been approved in Indonesia, Argentina, and Brazil for both seropositive and seronegative people, and the US Food and Drug Administration has granted the shot priority review.
One reason for the vaccine’s seeming success is that the Takeda team distinguished between seropositive and seronegative individuals in its trials (to ensure the vaccine was effective and safe for both populations), said Wallace, who is leading Takeda’s dengue vaccine development. “From a vaccine perspective, what we don’t want to do is be priming somebody for a worse infection later,” said Wallace. “We don’t want the vaccine to be acting like a primary infection, meaning the first real natural exposure to dengue is worse than it would otherwise have been.”
To ensure this safety, the trial took baseline blood samples from 20,000 children across eight countries, Wallace said. Additionally, the team collected data over four and a half years on the efficacy of the vaccine. This data showed that the vaccine prevented 84 percent of hospitalized dengue cases and 61 percent of symptomatic dengue cases.
Outside-the-box prevention methods
In the last two decades researchers have made tremendous progress in dengue-vaccine development, but the nature of the virus means it’s likely a single immunization alone will not stop the disease.
A vaccine that uses only one serotype to protect against dengue fever may not create a balanced immune response, said St. John. Over time, immunity to the four different serotypes diminishes at different rates, making an individual more susceptible to certain serotypes of dengue but not others.
“When we’re thinking about whether a vaccine is good, we think not only on the immediate protection that comes out on the first clinical trials, but also the longevity of this protection and how those immune responses are shaped over time as you get further and further away from that exposure,” said St. John.
One non-vaccine approach that has seen success is the World Mosquito Program’s initiative to breed virus-resistant mosquitoes. The bacterium Wolbachia prevents the Aedes mosquito from passing on dengue, yellow fever, chikungunya, and Zika virus. The World Mosquito Program breeds mosquitos that carry this naturally occurring bacteria and then release them into the natural environment.
“It’s exactly the same rationale for how vaccination works for humans. So you don’t need to vaccinate 100 percent of the people in the population to give protection to the whole population,” said O’Neill. “It’s effectively the same for our intervention … the bacteria that causes this effect has its own mechanism to transmit itself into the mosquito population.”
This initiative launched in Australia in 2011, and since then the country has reported no dengue transmission and the Wolbachia-positive mosquito population has become self-sustaining, said O’Neill. Additionally, this public health approach is cost-effective and socially acceptable. The initiative addresses multiple viruses at once, is self-sustaining, and does not create the same fear among those living in endemic areas as practices such as genetic engineering do, he added.
As the world turns its attention away from Covid, it’s important that scientists and policymakers continue to make progress — through vaccines and other more experimental methods — on long-existing diseases that continue to incapacitate and kill many people, especially the poor. And when it comes to dengue fever, vaccine manufacturers and public health leaders need to learn from past mistakes to ensure faith in these interventions does not wane.
“We should be using evidence to guide policy in the area of dengue control,” said O’Neill. “Any new intervention has to be able to show with the highest epidemiological evidence that their treatment or their innovation actually reduces disease before it can be heavily recommended.”
Is it possible to be truly original anymore — in your own life, in commerce, in art?
We’re in a cultural moment where it feels like so much is being rehashed, repackaged, and resold to a captive audience. This is certainly the case in entertainment, where the Hollywood reboot machine is the driving force behind what makes it to our screens; even “original” programming is frequently built from familiar storytelling tropes and formats. The same kind of recycling — sorry, remixing — holds true in pop music.
This carries over into matters of business and politics with just as much resonance. And when it comes to lifestyle topics like dieting, parenting, and even sex, we wind up circling the drain and repackaging old trends and ideas as hot new fads, too.
What makes newness, or novelty, or originality, so important in the first place, particularly in a society that heavily prioritizes individual comfort and choices? Are we in a uniquely not-new moment, or has it actually always felt this way?
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Crypto: New. Fraud: Old.
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Self-improvement is old. What’s new is the bootstrapping mythos and toxic positivity of the very rich.
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