Recognizing an NDA
Recognizing an NDA*
A non-disclosure agreement (NDA) is a legally binding document that prohibits the disclosure of designated confidential information. These agreements, also known as confidentiality or compromise agreements, have no time limits and are intended to silence the parties involved indefinitely.
Non-disclosure agreements are often used to cover up any situation that the other side does not want to be known. In other words, any situation that brings shame on them personally or affects their public reputation if the other side is a company or institution.
When might you be asked to sign an NDA?
In the Workplace:
When negotiating leaving your job, including in retirement, or when being pressured to “resign”
If making a formal complaint (e.g., discrimination, harassment) before an investigation
Bringing a human rights claim against your employer
Whistleblowing on another employee's bad behavior
Starting a new job with access to trade secrets
Outside the Workplace:
Suing for product or service defects
Suing for accidents or injuries caused by the other party's negligence
In any civil case claiming damages due to the other party's behavior
Before Negotiating, Mediating, or Investigating:
Before entering into negotiation or mediation, or before an investigation begins
Some organizations require NDAs before investigating complaints, different from confidentiality during the investigation
How to Recognize an NDA:
In many cases, one has to recognize the language of NDAs—”confidentiality,” “non-disparagement,” “privacy”—in order to spot them.
An NDA clause is part of a longer agreement settling a formal complaint or legal claim or initiating negotiations/mediation/investigation.
Typical NDA language involves agreeing to keep the existence and terms of the agreement confidential indefinitely.
Exceptions may be written in, allowing disclosure to specific individuals (e.g., family, professional counselor, medical professional, lawyer, financial advisor, insurer).
Common NDA Terms:
Clauses forbidding encouragement or cooperation with others having similar complaints
Fixed penalties for breaches or recovery of compensation paid under the settlement
Prohibitions on posting about the dispute or agreement on social media
Non-disparagement clauses preventing negative comments about the other party, even when those negative comments are true and backed up with evidence
Removal of complaints, discipline, or reports of investigation from personnel files
NDAs as part of mediation terms, ensuring confidentiality of discussions and documents shared during negotiations.
Understanding these characteristics will help individuals navigate situations where NDAs are involved, and recognize their implications and potential limitations. It’s important to ask: who or what institution will benefit from my silence?
*Adapted, with gratitude, from Can’t Buy My Silence, the groundbreaking Canadian and UK campaign started by Law Professor Emerita and Member, Order of Canada, Julie Macfarlane; and Zelda Perkins, the first woman to break her NDA with Harvey Weinstein. Can’t Buy My Silence.