What is an NDA?
One-third of Americans have signed an NDA at work, but many feel these agreements prevent victims of harassment from speaking out. We spoke to an expert about the history and culture surrounding this common practice in corporate culture.
Over 1/3 of U.S. workers are bound by an NDA.
Non-Disclosure Agreement, also known as an NDA, are a common feature in America's corporate world. “It can actually be used in really three different scenarios. You could be asked to sign one when you're hired. Scenario two is when you're leaving, and you are getting a severance. And the third scenario, which is a little more controversial, but I don't think any less legitimate, is when someone has brought a claim against the company.” Barbara E. Hoey. Co-chair of the Labor Employment Group reveals to Brut.
NDAs have been around for nearly a century, and they were originally used to prevent employees from revealing trade secrets
By the 1980s, they were standard language in white-collar job contracts and legal settlements. Hoey continues, “I think the idea that the NDA is always a terrible thing is frankly a mistake and or false, exaggerated. Sometimes bad. Yes. If someone is truly forced. Yes, but they are not always bad. They have legitimate business uses on the company side. And I think for many people who've been a victim or believe they've been a victim and want to just move on.”
In 2017, the #MeToo movement turned a spotlight on NDAs and how they prevent victims of sexual harassment from speaking out
“I think we see these NDA as having been abused or overused is where you have. I'm not going to name, but you all heard the stories. You have a man who is very powerful. And over the course of a several years, multiple women come forward one after the other, and they're all being paid off and they're all being asked to sign an NDA. Well, at what point does the company say, well, wait a minute, isn't he the problem? And that's where I think you've seen abuse. So, can they be abused? Yes. But can they be used in the right way? Yes. It's kind of an equal situation.”, she shares.
Critics argue that NDAs tend to benefit the stronger party and muzzle victims
Defenders say they offer desired privacy, not forced silence. “I think the idea that every individual person who signed an NDA was forced into it is an exaggeration. Are there some people who might have felt forced? Absolutely. I'm sure yes, but many people have their own attorneys and they're making an informed decision about whether to sign it. Is it always bad for women? No. I think in many, many cases and I've talked to women who have signed settlement documents, they want the confidentiality.”
Since 2018, lawmakers in 26 states and Washington, D.C. have introduced bills to restrict NDAs in instances of harassment and assault
“No company can force you to sign it. That's the bottom line. I mean, particularly today's world. No one can force you to settle. If you want to fight it, you could go and fight it. Everyone has the choice. Unfortunately, finances, I think, are probably the biggest issue money. I mean, they may have the choice. Monotonous is the means to go to.”, she tells Brut.
They are legal limits and exceptions to NDAs – they don’t prevent from reporting illegal activity or assisting in an agency investigation. Their enforceability also remains a topic of debate. “I think the enforcement, frankly, is a very difficult thing. Most people are going to not speak out because they feel a moral obligation that they signed it. They made a promise. So, I think sometimes these nondisclosure agreements have more of a prophylactic effect. They keep the individual quiet because the individual believes that they have an obligation to be quiet.”, she concludes.