Absent a contract to the contrary, workers are generally free to talk about their experiences of sexual harassment or other discrimination in the workplace. This is one reason why it is so common for companies to ask people to sign nondisclosure agreements (NDAs) and the like. In theory, when a workplace sexual harassment suit is settled and that settlement includes an NDA, the worker is no longer free to share their experiences publicly.
But after the #MeToo movement caught fire, many people began to realize that NDAs were not simply serving to keep business reputations intact. When used in a certain way, these agreements were keeping the underlying sexual harassment problem from actually being resolved. Alleged perpetrators were kept out of the spotlight and allowed to continue their problematic behavior.
As a result, many states are considering legislation that would restrict the situations in which an NDA could be used in a sexual harassment or discrimination settlement. The law is in flux at the moment, with states tending to legislate that NDAs will not be enforceable if they prohibit the disclosure of sexual assault or harassment to the authorities.
If you’re considering an NDA, your lawyer should focus on what can be accomplished by the agreement while limiting the chance that its provisions will be nullified by legislation or courts. It should be narrowly tailored, for example, to meet the needs of the company without unduly restricting the ability of the plaintiff to seek redress through state human rights agencies or the EEOC.
Here are some things to consider, inspired by the American Bar Association’s Section of Dispute Resolution.
- What are your underlying concerns? If they don’t relate to harassment, can the language be drafted narrowly to reflect those concerns?
- If this contract were made public, how comfortable will you be defending it in the court of public opinion?
- If the employee chose to violate the agreement and speak out, would you actually want to enforce it through the courts?
- Does the settlement address your underlying concerns?
- Who are you barred from speaking with? Law enforcement? Your attorney? Friends? family?
- If you are barred from speaking publicly, is the company also supposed to remain silent?
- Can you envision a scenario in which you would like to speak out? Does this contract limit your ability to do so?
- Are there aspects of the situation you would like to keep confidential?
- How certain are you that you won’t change your mind in the future?
To understand how your state may restrict NDAs, discuss your situation with an experienced employment law attorney before you sign anything.