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Do Nondisclosure Agreements Silence
Victims of Sexual Harassment?
One of the major news stories
of 2017 has been the torrent of
accusations of workplace sexual
harassment and assault leveled
against prominent men—
including actors, comedians, network
executives, Hollywood titans and
politicians. Among the questions
these accusations have raised is
whether employment confidentiality and nondisclosure agreements
(NDAs)—which the alleged victims
in the Harvey Weinstein case were
reportedly asked to sign—may go
too far in silencing people.
It depends. While these agreements
can limit legal claims, some workplace
rights can’t be waived. And enforceability
of these agreements hinges on the jurisdiction in which the offense occurred.
The Limits of Pre-
NDAs are typically used to protect trade
secrets, confidential business information and customer lists.
Sometimes they go further, but there
are limits. For example, they often prohibit comments that could harm the
company’s business reputation or an
employee’s personal standing, according
to Shafeeqa Giarratani and Derek Rollins, attorneys with Ogletree Deakins.
That said, seeking to use these restrictions to prevent workers from discussing
illegal activities may render the NDAs
unenforceable, they added.
The National Labor Relations Board
considers it an unfair labor practice to
ban workers from discussing their sexual
harassment complaints among themselves. Similarly, employees always retain
the right to cooperate with the Equal
Employment Opportunity Commission
(EEOC) and state civil rights agencies
investigating discrimination claims.
That means workers don’t relinquish
their entitlement to report illegal activity just because they signed an NDA.
Moreover, depending on the jurisdiction,
courts are not likely to enforce such agreements, according to the two attorneys.
What’s more common than NDAs are
confidentiality agreements entered into
at the end of employment relationships.
Companies often provide severance
packages in exchange for a signed waiver
in which departing employees agree to
release potential claims—including for
sexual harassment. These arrangements
are standard and intended to curb litigation and disparagement of the company.
They are much more enforceable than
NDAs, Giarratani and Rollins said, and in
the past have been effective at waiving civil
rights claims and stifling criminal charges.
Yet much depends on the jurisdiction
in question. For example, Califor-
nia prohibits the use of confiden-
tiality agreements if the underly-
ing facts could be prosecuted as a
felony sexual offense. Other states
have passed similar laws.
Criminal charges are brought
by the state—not an individual—
so a former employee can never
relinquish the state’s right to
bring a criminal charge against an
employer, said Douglas Brayley, an
attorney with Ropes & Gray.
And, as with pre-employment
NDAs, a severance agreement’s
release will be deemed unenforceable if
it tries to prevent an employee from fil-
ing a charge or working with the EEOC.
Other federal agencies also restrict
which rights workers can waive.
That’s why it’s a good idea to state in
your release that “nothing in this agreement prevents you from cooperating
with a government investigation,” Brayley suggested.
Pre- and post-employment agreements
may also attract unwanted attention
from state and federal agencies that want
to review your use of them, with an eye
toward potentially invalidating them,
Giarratani and Rollins said. Companies
can face substantial penalties if government agencies find that they are failing
to comply with the law, Brayley noted.
And that’s on top of the damage
employers may suffer in the public eye if
the alleged bad actors and the efforts to
hide them come to light.
That’s likely to make a bad situation
even worse, so be aware of the risks—
and know that it’s never a good idea to
try to prevent people from doing the
—Lisa Nagele-Piazza, J.D.,