Harvey Weinstein. Photo credit: Shutterstock.com

In the flood of work-related sexual harassment and assault allegations pouring out after women came forward with allegations against Harvey Weinstein, some have asked why victims of such abuses don't speak out sooner.

The answer is a complicated one that includes gender, class and age-related power dynamics—and nondisclosure agreements. A popular part of settlement agreements that binds signers into confidentiality on a varying range of topics, NDAs have recently come under scrutiny after victims said they were used as tools to keep them silent on abuse.

And while employment lawyers who represent companies say they don't see NDAs disappearing anytime soon, many agree that it's time to reassess settlement processes and create more industrywide transparency around the accused.

“Examine both aspects of the NDAs,” said Rich Meneghello, a partner at Fisher Phillips. “On the front end, review them with an eye toward making sure they aren't so broad as to cover every aspect [of employment]. Only take a precise and narrow approach to the kind of things vital to guard, things like trade secrets and products.”

Companies that require employees to sign NDA agreements at hiring or throughout projects should make sure signers know their rights, according to attorneys. Front-end NDAs should have carve-outs that allow employees to speak out against harassment and abuse, and their right to speak out should be made clear.

On the back-end, settlement-related NDAs are more complicated.

“Whether this results in a change in how companies approach NDAs is unresolved because NDAs serve a purpose and it's not to squelch disclosures and keep a culture of silence,” said Daniel Pasternak, a partner at Squire Patton Boggs. “It's an appropriate thing to ask that the terms of the settlement be confidential.” 

Pasternak says that without confidentiality, companies may be less likely to settle at all, and plaintiffs may have to instead go through a drawn-out, public litigation. All involved parties may want to keep settlements confidential to protect their own privacy.

But if not managed well, this confidentiality can have harmful consequences long-term.

“If there's an NDA and multiple instances, people often don't know there is a repeat offender,” said Connie Bertram, a partner at Proskauer Rose. “People from HR leave and then no one knows about this previous offense and [they] can't target the repeat offender.”  

It's a mistake that can be avoided if HR departments keep good records on settlements and investigations. Cynthia Augello, a partner at Cullen and Dykman, notes that a lot of issues with repeat offenders arise from complaints not being properly handled. She's worked on cases where those alleging misconduct were just told to avoid their harassers.

That can lead to a sense that harassment complaints don't matter to those in charge, leading to a vicious cycle that discourages victims from coming forward. Attorneys said investigations should be launched after sexual harassment complaints, and notes on these inquiries should be saved so that HR departments can see if there are patterns in an individual's behavior.

While a good HR team can prevent a repeat offender from continuing harassment at a specific company, according to the lawyers, it's difficult to communicate those issues with the individual's next employer if they're fired. When called on as a reference, many companies stick to the basics and don't mention the settlement or subsequent firing for fear of being sued.

“When a bad apple keeps showing up, it isn't so much confidentiality that's keeping them from being discovered, it's the broad defamation claims,” Meneghello said. 

In this case, he suggests the previous employer agree to give a full reference if and only if the ex-employee signs a release. If the former employee agrees, the company can be open with the potential new employer. And if they refuse, it shoots up red flags to alert the new company that their candidate may have something to hide.

Overall, lawyers agreed that getting rid of NDAs won't fix sexual harassment in the workplace or the culture that supports it. Plaintiffs are not required to sign and can take the case public if they choose, though there may be pressures not to. Under the National Labor Relations Act, any former or current employee can go to the government with concerns about their work environment, even if they settled.

The real issue stems from a combined lack of action when victims report, poor record-keeping and communications within HR departments, confusion about what's confidential in nonsettlement cases and companies' fear of defamation suits, the attorneys said.

“I don't think NDAs are the problem here,” Pasternak said. “It's the misconduct that's been unresolved. The NDA is a somewhat expedient excuse to avoid the bigger problem.” 

Harvey Weinstein. Photo credit: Shutterstock.com

In the flood of work-related sexual harassment and assault allegations pouring out after women came forward with allegations against Harvey Weinstein, some have asked why victims of such abuses don't speak out sooner.

The answer is a complicated one that includes gender, class and age-related power dynamics—and nondisclosure agreements. A popular part of settlement agreements that binds signers into confidentiality on a varying range of topics, NDAs have recently come under scrutiny after victims said they were used as tools to keep them silent on abuse.

And while employment lawyers who represent companies say they don't see NDAs disappearing anytime soon, many agree that it's time to reassess settlement processes and create more industrywide transparency around the accused.

“Examine both aspects of the NDAs,” said Rich Meneghello, a partner at Fisher Phillips. “On the front end, review them with an eye toward making sure they aren't so broad as to cover every aspect [of employment]. Only take a precise and narrow approach to the kind of things vital to guard, things like trade secrets and products.”

Companies that require employees to sign NDA agreements at hiring or throughout projects should make sure signers know their rights, according to attorneys. Front-end NDAs should have carve-outs that allow employees to speak out against harassment and abuse, and their right to speak out should be made clear.

On the back-end, settlement-related NDAs are more complicated.

“Whether this results in a change in how companies approach NDAs is unresolved because NDAs serve a purpose and it's not to squelch disclosures and keep a culture of silence,” said Daniel Pasternak, a partner at Squire Patton Boggs. “It's an appropriate thing to ask that the terms of the settlement be confidential.” 

Pasternak says that without confidentiality, companies may be less likely to settle at all, and plaintiffs may have to instead go through a drawn-out, public litigation. All involved parties may want to keep settlements confidential to protect their own privacy.

But if not managed well, this confidentiality can have harmful consequences long-term.

“If there's an NDA and multiple instances, people often don't know there is a repeat offender,” said Connie Bertram, a partner at Proskauer Rose. “People from HR leave and then no one knows about this previous offense and [they] can't target the repeat offender.”  

It's a mistake that can be avoided if HR departments keep good records on settlements and investigations. Cynthia Augello, a partner at Cullen and Dykman, notes that a lot of issues with repeat offenders arise from complaints not being properly handled. She's worked on cases where those alleging misconduct were just told to avoid their harassers.

That can lead to a sense that harassment complaints don't matter to those in charge, leading to a vicious cycle that discourages victims from coming forward. Attorneys said investigations should be launched after sexual harassment complaints, and notes on these inquiries should be saved so that HR departments can see if there are patterns in an individual's behavior.

While a good HR team can prevent a repeat offender from continuing harassment at a specific company, according to the lawyers, it's difficult to communicate those issues with the individual's next employer if they're fired. When called on as a reference, many companies stick to the basics and don't mention the settlement or subsequent firing for fear of being sued.

“When a bad apple keeps showing up, it isn't so much confidentiality that's keeping them from being discovered, it's the broad defamation claims,” Meneghello said. 

In this case, he suggests the previous employer agree to give a full reference if and only if the ex-employee signs a release. If the former employee agrees, the company can be open with the potential new employer. And if they refuse, it shoots up red flags to alert the new company that their candidate may have something to hide.

Overall, lawyers agreed that getting rid of NDAs won't fix sexual harassment in the workplace or the culture that supports it. Plaintiffs are not required to sign and can take the case public if they choose, though there may be pressures not to. Under the National Labor Relations Act, any former or current employee can go to the government with concerns about their work environment, even if they settled.

The real issue stems from a combined lack of action when victims report, poor record-keeping and communications within HR departments, confusion about what's confidential in nonsettlement cases and companies' fear of defamation suits, the attorneys said.

“I don't think NDAs are the problem here,” Pasternak said. “It's the misconduct that's been unresolved. The NDA is a somewhat expedient excuse to avoid the bigger problem.”