Harassment and Non-Disclosure Agreements - July 2020

Harassment is not limited only to sexual harassment. But the recent #MeToo movement and high-profile lawsuits against personalities such as Bill Cosby and Harvey Weinstein have brought that type of harassment to the forefront of national attention. Often, the women involved in these cases had signed non-disclosure agreements (NDAs), preventing them from speaking about the case or situation.

In the workplace, it is common for a departing employee to sign a non-disclosure, and sometimes a non-disparagement agreement, as part of a severance package or in return for a separation package. These are contracts where, in return for some form of consideration, the parties agree not to talk about certain issues such as disagreements that occurred or information to which the employee may have access during his or her employment.

The Limits of an NDA

An NDA is a contract and can contain a wide variety of clauses or provisions It can restrict someone from revealing any financial settlement amounts (if money is paid by one party), details of the dispute, and even that there was a dispute or problem to begin with. An NDA can keep the employee from suing the business or individuals involved and can even prevent the employee from facilitating an investigation underway by another person. Of course, an NDA can also keep an employer from saying or revealing certain information about the departing employee or details of that same dispute.

However, we saw in the Weinstein case, women coming forward to testify, likely in direct conflict with agreements they had previously signed. Ronan Farrow reported that the legal and public relations team for Weinstein took measures to try and suppress these women from speaking out.

The first women who chose to come forward, however, didn’t know that her story would get the attention that it did. If it hadn’t received such attention, and Weinstein’s team had chosen to sue for breach of the NDA, the impact could easily have been financially devastating to that woman.

To Agree or Not to Agree

If you face harassment at work, and report this diligently to human resources, they are likely to investigate. However, HR may conclude that nothing occurred, that there was no corroboration of the harassment, and/or that “it’s just a he-said she-said”. Yet, to keep you from going to the press, seeking legal counsel, or speaking badly about the company to others, the company may offer a settlement in return for your silence. The best time to negotiate the details of this agreement is before you sign the document.

If you are faced with the prospect of signing a non-disclosure agreement you should reach out to an experienced workplace harassment attorney first. The team at Phillips & Associates is a big firm that defends employees, including those who have been sexually harassed, so you won’t be out gunned by the big firm your old employer hires to defend itself. For a free consultation, call the experienced New York discrimination and wrongful termination attorneys at Phillips & Associates today at (866) 229-9441.

At Phillips & Associates - We Level the Playing Field

Employees were, and for the most part still are, at a big disadvantage in the workplace. There is a dramatic power imbalance between employees and the companies for which they work. This power balance can intensify after experiencing sexual harassment or discrimination. The company/employer often hires a large law firm to represent it, while employees may have just lost their jobs, have very little money, and no one to help them understand their rights. At Phillips & Associates, we have the experience, staffing, and financial backing to keep the playing field level. People need to take a close look at the lawyer or law firm they want to hire and determine if that lawyer or firm has the funds, experience, and the resources to properly litigate their case.

Phillips & Associates is one of the largest plaintiffs’ only employment law firms in New York. The firm handles cases involving sexual harassment and discrimination in the workplace including pregnancy, race, disability, religion, gender, nationality, criminal convictions, sexual orientation and other protected traits. Phillips & Associates also handles other areas of harassment at work such as retaliation and wrongful termination. Most recently Phillips & Associates was selected as one of the "10 Best Employment & Labor Law Firms" in New York" by the American Institute of Legal Counsel.

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