The effects of the #MeToo movement on sexual harassment law cannot be overstated. As a result of the movement, many states, including New York, considered or passed laws reining in the use of non-disclosure agreements (NDAs). Now, employers can no longer require NDAs when settling sexual harassment or other discrimination claims. However, employees can still request NDAs.
Additionally, any NDAs must make clear that the employee is not prohibited from “speaking with law enforcement, the Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.”
In other words, an NDA can’t stop the worker from filing a legal complaint or getting advice about filing a complaint.
The new law was meant to keep companies from using NDAs to shield bad actors from the legal consequences of their actions and from public view. In the past, NDAs have sometimes allowed bad actors to escape consequences altogether and continue their harassment or discrimination.
Traditionally, there have been several types of clauses used to limit the free speech of a complainant:
Non-disclosure provision: Often restricts the worker from discussing the underlying claim or the settlement with anyone, including friends and family.
Non-disparagement provision: Could restrict the worker from making any negative statements about the company or the alleged harasser, even if such statements are true.
Affirmative statements provision: Can require the worker to make positive comments about the defendant. For example, according to the American Bar Association, one settlement reached by Harvey Weinstein included a provision that required his victim to say positive things if contacted by the media.
Non-cooperation provision: Generally requires the worker not to sue or to assist others in suing the defendant company, which may include making a complaint with a regulator or the police.
Until the new law around NDAs is more settled, it is difficult to know which of these would be enforceable, although it’s likely that the non-cooperation provision could not be enforced.
What should you consider?
If asked to sign an NDA, you should consider whether it is in your interest to do so and, if it is not, what benefit you will get from signing. Also, be sure you understand what is required.
- Is it likely you will want to speak openly about the issues?
- Are there any aspects of your situation you would like to keep private?
- Can you envision a scenario in which you would want to speak openly? Would the NDA prevent you from doing so?
- Does the NDA prevent you from talking to your friends and family? Do you want to tell your friends and family about the situation?
- How certain are you that you will not want to change your mind?
If you have been asked to sign an NDA, you have the right to speak to an attorney about any concerns you may have. Before you sign anything, be sure you understand the purpose of the agreement, its scope, and the penalties for violating it.
