Non-disclosure and non-disparagement clauses are standard in the working world. Do you know what they are? If you’ve signed one, does it trap you into silence after you file a harassment or discrimination complaint?
- Non-disclosure – A legal agreement that requires certain information covered in the clause to remain confidential.
- Non-disparagement A legal agreement that requires you never to say anything negative about a company, product, services, leaders, or management.
You take a job at a company, and in the contract, you sign a non-disclosure clause stating you cannot talk about that employer with others. Companies often use this to avoid having trade secrets from being leaked to the competition. While that’s usually the goal, it can also keep victims of workplace harassment and discrimination from being shared.
What stops a worker from ignoring the terms in a non-disclosure agreement? Often, penalties are tied to something beneficial to that employee. For example, a company might say that violations of the NDA will result in the loss of severance packages offered during a lay-off. If an employee who’s laid off knows that the only workers to lose their jobs are women over the age of 45, it can indicate age discrimination. If workers can’t talk openly about it without fear of losing severance benefits, the employer gets away with the suspected discriminatory behavior.
How is this possible? Can employers really use an NDA to prevent discriminatory behavior from getting leaked to the media or other potential workers? The reality is that they often can. Only limited protections are in place.
Around the world, NDAs can be used to protect harassers and abusers. It’s a hot topic as cases come out about women who are sexually abused by their managers and supervisors and forced to sign NDAs to keep the details of the attack from being released to the public.
Around 33% of workers have signed NDAs during their employment. While many countries and states work on laws to end this practice, California is taking the first steps to end it for good. New York and Pennsylvania are also working on regulations that will limit the abusive powers that some companies get through the NDAs they require workers to sign.
NDAs Are a Hot Topic
NDAs have become a hot topic as some companies use them to maintain a stellar public appearance. In one recent lawsuit, the vice president of a popular university is suing after he claims he lost his job for speaking up regarding the school’s failure to take appropriate measures following allegations of sexual assaults on campus. While that former vice president hadn’t had to sign an NDA, students and other staff members allegedly had signed them.
A game developer also made headlines after decades of sexual harassment and discrimination claims came out. It appeared that workers were told to sign NDAs and offered cash incentives to keep employees from talking to outside sources. It’s also rumored that employees with complaints were told to speak to the company’s lawyers and not to investigators.
In another case, an e-cigarette company will pay more than $2 to settle a whistleblower case regarding the forced use of NDAs. Employees who worked for the company or were still currently employed there were told to sign NDAs, preventing them from discussing children and vaping.
These cases are all examples of why NDAs are not always beneficial. They can help companies hide bad behavior, and that’s not acceptable.
Two Laws Designed to Protect Californians
In California, two laws protect against NDAs that are designed to silence employees: The Stand Together Against Non-Disclosures Act and the Silenced No More Act.
The Stand Together Against Non-Disclosures (STAND) Act was signed into law in 2018. It prevented NDAs regarding complaints regarding gender-based discrimination. It offered no other protections, however. That’s about to change.
Ifeoma Ozoma spearheaded the Silenced No More Act. As the pandemic started, she left her managerial position with Pinterest. She was told to sign a non-disclosure and non-disparagement agreement or lose her compensation package and health insurance. The problem was she and several co-workers experienced racial discrimination. While STAND allowed her to break an NDA for gender discrimination, she couldn’t do anything about the racial discrimination without violating her NDA.
Speaking out about harassment and discriminatory practices is key to ending unfair treatment in the workplace. No one should feel silenced. That’s the goal of Silenced No More.
Effective in 2022, Californians are going to be protected from all NDAs. On October 8, Governor Newsom signed the Silenced No More Act that offers additional protection for workers who speak out against harassment and discrimination. Here’s what is changing on January 1, 2022.
An NDA Cannot Prevent You From Talking About Unlawful Acts in the Workplace
As SBA 331 takes effect on January 1, workplaces may still push NDAs for now, but it’s futile as the law will cover any NDA signed from January 1, 2019. Any older NDA that includes clauses designed to silence workers who file discrimination or harassment complaints will be unenforceable. No NDA can keep a worker from talking about behavior related to prohibited acts, such as sexual, racial, gender, religion, age, and pregnancy discrimination or harassment.
The NDA also protects people who purchase/rent a home and face discrimination for one of those same reasons. It prohibits a company from offering a cash reward to get an employer to sign a PDA that goes against these terms.
A company can still require you to sign an NDA if the NDA covers trade secrets or confidential information not related to unlawful acts within the workplace. For example, you work for a company that designs planes for the military. You can be required to sign an NDA that you will never talk about your work. The company could not require you to sign an NDA if you learned their CEO refused to hire transgender applicants no matter what skills they have.
Until the law goes into effect in 2022, there’s always the chance that an employer may try to get workers to stick to the terms laid out in NDAs. Until the first of the year, NDAs are still allowed. The NDA terms have to make it clear that the rule is not related to gender-based discrimination. Any non-disparagement agreement must contain legalese stating that discussions or disclosures of information regarding unlawful acts are allowed and not violations of the NDA.
If you have a settlement coming, you may be asked to sign an NDA before the money is released, as clauses preventing the release of how much that settlement came to are allowed. If you’re about to take a job, you might be required to sign an NDA. Before you do anything, talk to an employment law attorney. It’s wise to ask questions before signing anything to ensure your company is not violating this new law. In fact, employers that offer a settlement agreement must notify employees that they have the right to talk to an employment law attorney and provide a five-day grace period to sign it.
You need to consult with experts in workplace harassment and discrimination. It would be best if you made sure a contract is legitimate and not infringing upon your rights. Shegerian Conniff is here to help you fight for justice. Reach out to us and let us know how we can help you.