FAQs on NDAs
FAQs*
PART ONE: Addressing the Misuse of NDAs
Q: Aren’t NDAs supposed to protect commercially sensitive materials, intellectual property, and research/innovation owned by the organization/company/department?
A: Yes, NDAs were initially crafted in the 1980s to safeguard trade secrets during the tech boom in California. While it is appropriate for NDAs to uphold this original purpose, we aim to prevent the misuse of NDAs that are used to conceal misconduct, bullying, and illegal discrimination, harassment, and retaliation.
Q: How are NDAs being used now?
A: Currently, NDAs are pervasive, with an estimated 95% inclusion in civil settlements. They go beyond cases of sexual harassment and discrimination, extending to agreements on diverse matters such as house prices, medical malpractice, neglect in care homes, and municipal matters. Legislation proposed by Can't Buy My Silence and Lift Our Voices seeks to restrict the misuse of NDAs in discrimination, harassment, and abuse cases by establishing mandatory conditions to ensure fairness and protect the public interest.
Q: But aren’t NDAs essential for settling cases?
A: Settlements in civil cases have historically occurred at a rate of 90-95%, even before NDAs became commonplace in the early 1980s. While defendants may prefer NDAs to control and silence victims, a public hearing is often a less favorable outcome for them. Experts advocate for removing the NDA option, contending that NDAs are used to coerce and intimidate complainants, ultimately covering up the truth.
Q: Don’t victims want confidentiality?
A: Absolutely, victim-survivors want confidentiality some of the time; but, in those cases, confidentiality can be achieved through a one-sided confidentiality clause that protects the victim. NDAs, however, demand mutual confidentiality, with victims promising silence in exchange for their own confidentiality. Based on recommendations by Can’t Buy My Silence, we suggest opting for a one-sided confidentiality guarantee to protect the victim without compromising their right to speak out.
Q: Is this an equity issue?
A: Yes, it is! One in three workers has signed some form of NDA, disproportionately affecting vulnerable groups with income insecurity. Data collected by Can’t Buy My Silence indicates that low-income individuals, particularly Black women, report signing NDAs at higher rates than their counterparts. And among all populations, NDAs are typically included in settlement processes in which the potential signer has been threatened and intimidated, at worst, and where the power is one-sided and in the hands of the institution, at best.
PART TWO: Understanding Your Agreement
Q: My lawyer says that I should sign this agreement immediately. Can I ask for time to think about it?
A: Absolutely. You should request as much time as you need and consider discussing it with someone not bound by confidentiality. If necessary, ask for an exception to the confidentiality agreement for this discussion.
Q: The agreement says only that the amount of compensation paid to me is confidential. Is that normal?
A: Yes, it's common. While confidentiality about compensation amount only is standard and acceptable, be cautious of additional confidentiality restrictions that go beyond this.
Q: I have a clause in my agreement that reads: “The terms and conditions of this agreement shall remain strictly confidential between the parties and shall not be disclosed to anyone.” Does this mean I can’t even say that we made an agreement?
A: This common wording is intentionally vague. It likely implies you cannot discuss your complaint or situation at all. It's advisable to seek clarification from the other party's lawyer or your own legal representative. When one party holds the power to define words like “confidential” or “private,” one must ask: who benefits from my silence?
Q: Is my NDA even going to be enforced by the court? Surely it is obviously unfair, and I signed without fully understanding and under pressure.
A: Many NDA clauses may not be enforceable due to issues like lack of proper consent or exploitation of power imbalances. Recent legal decisions have questioned the enforceability of NDAs, highlighting the need for new laws to prevent cover-up NDAs from the outset. This is progress. However, many institutions rely on a signer’s fear of reprisal, and the unknowing complicity of the community, to ensure compliance even when a signer has realized that the NDA solved nothing and is, in fact, prolonging and increasing harm.
*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.