Nondisclosure Agreements Should Protect Intellectual Property, Not Predators

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Todd Wiseman / Texas Tribune

The enforcement of nondisclosure agreements remains a matter of state law.

The last several months have been deeply troubling for our country as previously untold stories of sexual assault and harassment have emerged across many sectors of society that impact all communities. Victims often cite fear of retribution from abusers as a primary barrier to sharing their stories.

Unfortunately, those who have been victimized might also be silenced by the very document they thought would protect them: a nondisclosure agreement, or NDA.

NDAs are critical tools to ensure proprietary data is protected, such as the design of a new product or idea, but they should never be used to discourage or prohibit the reporting of assault or harassment.

The textbook example is the case of Olympic gold medalist McKayla Maroney, who was one of the more than 150 victims of Larry Nassar during his tenure as team doctor for USA Gymnastics. After coming forward, Maroney was forced to sign an NDA that deprived her of speaking out even after his guilty conviction. Thankfully, her voice was finally heard when USA Gymnastics announced it would not pursue the sanction under massive public pressure.

Many of the victims of disgraced film producer Harvey Weinstein were also silenced by NDAs as part of legal settlements that followed their allegations against the Hollywood mogul. We may never know how many people were victimized by high-profile, powerful men, in part because the atrocities they reported were buried under the protection of nondisclosure contracts, involving organizations and people like Fox News, NBC, Catholic Healthcare West, actor Bill Cosby, Google, and Binary Capital.

Historically, workers have been protected under the National Labor Relations Act, known as the “Wagner Act,” passed by Congress in 1935. It protects the rights of employees and employers by encouraging collective bargaining and restricting certain private sector labor and management practices. But the enforcement of contracts such as NDAs remain a matter of state law, giving little or no protection to the many victims of harassment cases who regretfully sign such documents. The pain of assaults is only magnified when survivors realize that there are not enough laws protecting them from penalties if they speak out.

The stories we’ve heard from so many brave individuals in recent weeks have spurred a national dialogue about workplace harassment. As our nation grapples with the aftermath of long-held secrets that have wounded so many lives, we as legislators have a duty to listen and take action.

Nondisclosure agreements should never be allowed to protect any type of criminal activity. This is why I will author legislation that would prohibit nondisclosure or confidentiality agreements that keep employees from reporting harassment, abuse, assault, or other crimes. I’m not against NDAs that protect intellectual property and proprietary business practices, but these contracts shouldn’t prevent individuals from reporting criminal acts. They shouldn’t be used to buy a victim’s silence. No one who has experienced harassment or assault should be silenced or punished for speaking out.

This legislation would be a part of creating workplace environments in which people are treated with respect and dignity.

Working with Southern Methodist University Law Professor Joanna L. Grossman, I have learned about the need to review the widespread use of NDAs, which Grossman says can create a harmful system of secrecy around what is now a pervasive problem of workplace harassment.

I have already asked the Texas Legislative Council to draft legislation for the 2019 session so that I may pre-file it in November. Our job as legislators and our responsibility as citizens is to defend against abuses of power – and sexual harassment and assault in the workplace are clearly abuses of power.

 

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