Katz, Marshall & Banks partner Debra Katz spoke to the Washington Post, MarketWatch, and Newsweek about non-disclosure agreements and whom they serve. The use – and abuse – of non-disclosure agreements (“NDAs”) has come under fire in recent years because of their use to keep victims of harassment and discrimination silent under the threat of massive damages.
In the Democratic presidential primary debate this past week, Senator Elizabeth Warren brought up Michael Bloomberg’s comments about women, and focused on the strict NDAs that an undisclosed number of Bloomberg employees have signed. In response, Bloomberg dismissed the alleged misconduct as an employee who “didn’t like a joke [he] told,” and maintained that the NDAs were “consensual.”
Bloomberg “really missed the mark,” Ms. Katz told the Washington Post. “I think Bloomberg’s comments were tone-deaf. In this moment, when we now understand that many NDAs were entered into in coercive manners, it’s incumbent upon companies and especially those [led by people] like Bloomberg, who are public figures, to agree to revisit these issues.”
In general, NDAs can play a role in providing privacy to victims who don’t want their experiences made public, but employees should be mindful of red flags if they are asked to sign NDAs as a condition of employment. Ms. Katz told MarketWatch that NDAs are too often used to muzzle employees from speaking out about abuses in the workplace – not just confidential trade secrets. Additionally, employees should be mindful of “agreements that go on in perpetuity, so the employee can leave and for the rest of his or her life be precluded from ever saying anything negative about that employer.”
However, there are certainly times when NDAs can be mutually beneficial. "Most of my clients just want to go on with their lives, and that means having their privacy protected and being able to restore the dignity they lost in the workplace," Ms. Katz told Newsweek. "They need to be able to have control over that decision."
Therefore, while confidentiality agreements can be legitimate, and even necessary in the business world, workers shouldn’t be forced to sign agreements that discourage or prevent speaking out about harassment or discrimination.