Non-disclosure agreements (NDAs) serve valuable purposes in the business world. Often, high-level discussions about business partnerships and joint ventures require an NDA to ensure that parties can talk about confidential information without worrying about leaks. And senior employees with access to trade secrets and other confidential information may need to be under NDAs to protect the company’s valuable intellectual property.
However, NDAs are used for much more than these noble purposes. An estimated one-third of the U.S. workforce is currently under a non-disclosure or confidentiality agreement, and the scope of those agreements goes far beyond protecting intellectual property. In particular, NDAs have been weaponized to stop workers from speaking up about illegal discrimination and harassment.
The changing role of NDAs in the American workforce
When used properly, NDAs should be fairly narrow: tailored to specifically protect legitimate business interests such as trade secrets, and only signed by relatively senior employees who actually have access to valuable, confidential information. But that’s not the case in reality. In fact, according to Forbes, minimum-wage workers are actually more likely to be under an NDA than other employees.
Likewise, many NDAs today use much broader language than would be necessary purely to protect trade secrets. Some employers have gone so far as to prohibit workers from bringing any knowledge they gained at their current job to their next job, even if it’s simply general knowledge about how to do their job. As a federal judge remarked in one high-profile secrecy trial, this is an absurd demand: “Is an engineer supposed to get a frontal lobotomy before they go on to the next job?”
Even more significantly, many NDAs prohibit employees from disclosing anything that would make the company look bad. They’re essentially a mechanism for employers to retaliate against whistleblowers and silence victims of harassment and discrimination who are brave enough to speak up.
Recent federal legislation is a start, but much more must be done
The problems associated with NDAs in harassment cases are severe enough to have prompted Congress to act. The Speak Out Act, which was signed into law in 2022, renders NDAs unenforceable in cases involving sexual harassment and assault. So, victims of these behaviors in the workplace are free to speak out without fear of retaliation under the terms of their NDAs.
However, the Speak Out Act’s protections are quite limited. First, they only apply to NDAs signed before the harassment or assault in question occurred (for instance, during hiring). An NDA signed after the fact, such as during a settlement, remains enforceable. Second, the Speak Out Act doesn’t apply to discrimination cases.
Lawmakers in some states have enacted broader protections for workers, but progress is slow—in part because NDAs are quite commonly used by legislators themselves, according to Forbes. The consequences for victims can be severe: not just loss of legal options, but also the severe emotional strain of having to suffer in silence.
“There's a huge psychological component to having to sit on something that is so obviously devastating to you and not being able to talk about it with anybody,” said Julie Roginsky, cofounder of Lift Our Voices, a group that advocates for workers.
Our law firm stands up for victims of harassment and discrimination
Even if you are bound by a non-disclosure agreement, you have rights under state and federal law. The NDA may make the process more complicated, but an experienced and effective attorney can help you understand your options and fight to protect your legal rights. If you’ve been harassed or discriminated against at work, contact Gibson Law, LLC today for a free, confidential case evaluation.