According to Kelsey’s article, OpenAI employees are coerced into signing lifelong nondisparagement agreements, which also forbid discussion of the nondisparagement agreements themselves, under threat of losing all of their equity.
This is intensely contrary to the public interest, and possibly illegal. Enormous kudos for bringing it to light.
In a legal dispute initiated by an OpenAI employee, the most important thing would probably be what representations were previously made about the equity. That’s hard for me to evaluate, but if it’s true that they were presented as compensation and the nondisparagement wasn’t disclosed, then rescinding those benefits could be a breach of contract. However, I’m not sure if this would apply if this was threatened but the threat wasn’t actually executed.
CA GOV § 12964.5 and 372 NLRB No. 58 also offer some angles by which former OpenAI employees might fight this in court.
CA GOV § 12964.5 talks specifically about disclosure of “conduct that you have reason to believe is unlawful.” Generically criticizing OpenAI as pursuing unsafe research would not qualify unless (the speaker believes) it rises to the level of criminal endangerment, or similar. Copyright issues would *probably* qualify. Workplace harrassment would definitely qualify.
(No OpenAI employees have alleged any of these things publicly, to my knowledge)
372 NLRB No. 58 nominally invalidates separation agreements that contain nondisparagement clauses, and that restrict discussion of the terms of the separation agreement itself. However, it’s specifically focused on the effect on collective bargaining rights under the National Labor Relations Act, which could make it inapplicable.
The language shown in this tweet says:
It’s a trick!
Departing OpenAI employees are then offered a general release which meets the requirements of this section and also contains additional terms. What a departing OpenAI employee needs to do is have their own lawyer draft, execute, and deliver a general release which meets the requirements set forth. Signing the separation agreement is a mistake, and rejecting the separation agreement without providing your own general release is a mistake.
I could be misunderstanding this; I’m not a lawyer, just a person reading carefully. And there’s a lot more agreement text that I don’t have screenshots of. Still, I think the practical upshot is that departing OpenAI employees may be being tricked, and this particular trick seems defeatable to me. Anyone leaving OpenAI really needs a good lawyer.