Rampant Misuse of Corporate ‘Gagging’
In the wake of the #MeToo movement, after the accusation of sexual assault against Harvey Weinstein by over 70 women, the use of Non-Disclosure Agreements (NDA) has been a growing concern in public discourse and government. An NDA is an agreement which contains confidentiality clauses, often used in settlement agreements to prevent the signatory from releasing certain information into the public domain. Zelda Perkins, a victim of Weinstein, signed an NDA which prevented her from disclosing allegations of sexual assault even to medical professionals, unless they too entered a confidentiality agreement with Miramax. Perkins was not given a copy of the agreement and after receiving legal advice from a junior lawyer, she was mistakenly led to believe that she could not speak of the allegations to anyone without Weinstein’s approval.
Last year, the UK saw many of the 130 agency-hired hostesses “groped” and harassed at the President’s Club Charity Dinner, a male-only black-tie event in aid of children’s charities. Before the event, the agency company Arista gave the hostesses contracts to sign which transpired to be NDAs. The women were not given time to properly read the document nor were given a copy of it.
Such usage of confidentiality clauses is both immoral and unlawful. Section 23 of the Protected Disclosure Act 2014 ensures that any agreement which precludes an individual from making a protected disclosure shall be void. The signatory is often unaware of such legislative protection and are coerced to signing the agreement without independent legal advice. The House of Commons Women and Equalities Select Committee have stated significant ‘insufficient oversight and regulation’ in the use of NDAs, dissuading victims from disclosing information as which reporting to law enforcement is not directly protected under either English or Irish law.
A justice system which systematically perpetuates the silencing of victims in the work place is undoubtably severely flawed. Although it is the duty of the Oireachtas to properly regulate the misuse of NDAs, a worker’s knowledge of their rights may mitigate a potentially illegal agreement with their employer. A signatory should never feel coerced into signing an NDA through intimidation and evidence supporting such coercion on a party to the contract should render the agreement void. Furthermore, NDAs should never dissuade a worker to make disclosures to legal authorities so long as the disclosure is qualified as ‘protected’ under the 2014 Act. It is strongly recommended that an individual seeks independent legal advice before signing an NDA so as they don’t feel restrained from talking a medical professional, a family member or a close friend.
Rob Ó Beacháin – Law Editor