Non-disclosure Agreements in a Monumental New Landscape

//Non-disclosure Agreements in a Monumental New Landscape

Non-disclosure-Agreements-in-a-Monumental-New-LandscapeBy Mark Petrolis

With the rise of the #MeToo movement, we have heard stories of women who were afraid to previously come forward against their perpetrators, due to the impenetrable barriers created by Non-Disclosure Agreements (“NDA”) these women signed, often with their (former) employers.

It has always been difficult for victims of sexual harassment and misconduct to come forward. Often these victims feel guilty, shame, and are just plain terrified to do so. However, if these victims signed an NDA, the potential legal consequences of them breaking an NDA may keep them silent. Often, NDAs have clauses for monetary damages, particularly attorneys’ fees if a person violates an NDA. Now a victim who may potentially want to move forward could be restrained by their NDA and forego the possibility of legal recourse.

NDAs have been historically used to protect a company’s confidential and/or proprietary information. This included trade secrets, like customer lists or highly developed processes.  Historically, NDAs were never intended to protect an Employer from their wrongdoings, but to shield their innovations from misappropriations.

In conducting legal research, I could not find a case that goes directly to the questions whether an NDA has been held unenforceable due to one of the parties bringing a sexual assault/misconduct claim. However, courts can turn to an abundance of case law involving whether an NDA is enforceable.

Indeed, courts have stated that NDAs are unenforceable if they go against public policy. Further, jurisdictions, all over the country have overwhelming held that public policy dictates that sexual harassment and sexual misconduct must be prevented in the workplace. Given this precedent, a court could likely hold that an NDA would be unenforceable against a victim who brings a sexual harassment/misconduct claim against her employer.

However, gauging how courts will rule on novel legal issues based on case law is never certain. Thus, legislation that categorically prevents NDAs to be enforceable in matters where sexual misconduct is at issue would provide the most legal certainty. Given the #MeToo’s wave for social change, enacting such a federal law may be a real solution to this growing problem.

By |July 17th, 2018|

About the Author:

For years, Josh has helped lawyers become more organized, productive, and profitable. A trained litigator, Josh came to Smokeball from a large east-coast law firm where his practice focused on franchise, insurance, marine, and general litigation. His work with Smokeball, and his continued passion for what he does each day, is driven by a desire to help lawyers and their staff do better in every way. Knowing well the stress and strain put on today’s legal professional, he regularly focuses on improving work and life in the law. He has traveled the country working with and learning from lawyers and their staff. Josh speaks regularly to bar associations about successful law firm practices and other legal topics. Recent notable engagements have been with the Chicago Bar Association, the Illinois State Bar Association, and the Missouri Bar’s Solo and Small Firm Conference. In addition to his work at Smokeball, Josh serves on the Writing Resource Center staff at The John Marshall Law School. Besides legal technology, his research interests include judicial decision-making, jury decision-making and psychology, and legal writing. He has written and overseen research exploring causal effects of sex/gender on federal appellate court decision-making, and assisted with research for a forthcoming textbook on judicial decision-making. Additionally, Josh sits on the Board of Directors of Chicago-based Community Activism Law Alliance and on the Board of Directors of Chicago Fringe Opera Company. Josh holds his J.D., cum laude, from Washington University in St. Louis, where he served as a Senior Editor of the Wash. U. Law Review, held the prestigious Thompson Coburn Research Fellowship, served as Research Assistant to then-Vice-Dean (now Chancellor) Andrew D. Martin, and clerked at the U.S. District Court for the Eastern District of Missouri. He holds a B.A. in Political Science and a B.M. in Music Performance with Honors Scholar distinction from the University of Connecticut, making him a Huskies basketball fan through and through. Follow Josh’s activity on LinkedIn, and keep up with new articles on the Smokeball Blog.