Non-disclosure agreements (NDAs) have become increasingly common in the U.S. workforce. According to the Harvard Business Review, over one-third of American employees are bound by an NDA, and those NDAs have become broader in terms of what they prohibit, too.
While some NDAs are necessary to serve legitimate business purposes, they are also a tool that employers exploit to weaken employees’ rights. And one of the most troubling uses of NDAs is to silence victims of harassment and discrimination in the workplace.
What are NDAs, and how are they changing?
A non-disclosure agreement is simply a legal contract that prohibits a party from sharing confidential information with others. NDAs are also known as confidentiality agreements or simply non-disclosures.
Traditionally, NDAs were mostly used to protect trade secrets and other intellectual property. They can serve a valuable purpose when businesses are discussing potential deals and need to share confidential information in order to reach an agreement. NDAs are also commonly signed as part of harassment and discrimination settlements.
However, NDAs are increasingly popping up in standard employment contracts upon hiring, and their scope increasingly goes well beyond trade secrets. Often, NDAs are broadly worded to prevent employees from speaking up about corporate culture and day-to-day operations at the company. Many employees have signed NDAs prohibiting them from talking about anything that would portray the employer in a negative light, a category that, of course, includes speaking up about harassment or discrimination.
NDAs are sometimes bundled with non-compete clauses, which carry their own host of issues for employees. And a sufficiently broad NDA can functionally serve as a non-compete by requiring employees not to take any knowledge gained at their current job, even general know-how, to their next job.
NDAs can make reporting harassment and other toxic workplace behaviors impossible
As Forbes reported, the widespread use of NDAs can make it incredibly difficult for victims of sexual harassment and other unlawful workplace behaviors to come forward. According to Forbes, minimum wage workers—those least likely to have access to trade secrets and confidential information—are actually more likely to have signed NDAs than other employees.
“Those are the people who legitimately can’t afford to come forward. Not only can they not afford legal representation, but they can’t risk being unemployed,” said Gretchen Carlson, cofounder of Lift Our Voices, a nonprofit organization that advocates for workers’ rights.
Federal legislation has made some progress to ease the burden NDAs place on harassment victims. Signed into law in 2022, the Speak Out Act makes NDAs unenforceable in cases of sexual harassment and assault. However, this law only applies to NDAs signed before the harassment occurred; NDAs signed afterward, such as those that are part of a settlement, remain enforceable. Furthermore, the Speak Out Act doesn’t cover discrimination or other types of unlawful harassment.
If you have been harassed at work and are under an NDA, get legal advice right away
Non-disclosure agreements can make it significantly more difficult for victims of harassment to come forward, but employees still have legal rights. That’s why it’s so important to talk to an attorney right away. A lawyer can listen to your story in a privileged, confidential setting and explain your legal rights and options. In addition to pursuing compensation for harassment, it may be possible to get the NDA invalidated if it is overbroad or otherwise legally suspect.
If you’ve been harassed at work, you don’t have to suffer in silence. Contact Nilges Draher LLC to schedule your free case evaluation. We can help.