Ban Non Disclosure Agreements for Crimes

[Ruken]

@Bricker

While this is not my area of law, I strongly doubt your conclusion. A confidentiality agreement drafted in response to a specific accusation is not similar to an agreement that parties submit contract disputes to arbitration. The first is a tort claim: an accusation that Richard did something bad to Jane that amounts to a civil wrong, a breach of some civil duty he owes her, like not conditioning employment on sexual conduct. The second is a contract claim, an accusation that Richard breached some contractual duty to Jane arising from the employment.

I would be surprised to learn of any sort of binding confidentiality agreement that was imposed before the tortious conduct even occurred, and suspect that any such attempt to impose conditions like that would be void as a matter of public policy.

What conclusion? That was a summary as best I could remember. I sent and looked for the story: http://wvik.org/post/former-fox-news-host-gretchen-carlson-being-fierce-and-fighting-sexual-abuse

[puddleglum]

@Whack-a-Mole

So here you have an NDA stopping employees from reporting malfeasance they believe their employer is up to. Some here may say that is not enforceable but would you pit your secretary salary to hire an inexpensive attorney against Weinstein’s millions and platoon of lawyers? Probably not.

After some research it appears that for the most part an NDA that covers sexual harassment is not enforceable, but that it done on a case by case basis and the only way to be sure is to say nothing. Thus the problem needs to move from the judiciary to the legislature. That way everyone can know what the rules are and not just lawyers.

[Really_Not_All_That_Bright]

No legislature in history has ever made it easier to figure out what the law is.

[Whack-a-Mole]

@puddleglum

After some research it appears that for the most part an NDA that covers sexual harassment is not enforceable, but that it done on a case by case basis and the only way to be sure is to say nothing. Thus the problem needs to move from the judiciary to the legislature. That way everyone can know what the rules are and not just lawyers.

“Case by case basis” is the key here. The secretary has to hire a lawyer that probably costs more than they can afford and pit them against Weinstein’s millions and top notch attorneys who will probably make sure the case goes on long past the person’s ability to afford to continue the fight.

[Happy_Scrappy_Hero_Pup]

@Really_Not_All_That_Bright

As a general matter, even agreements to arbitrate employment disputes are not enforceable if they are a condition of employment.

Here in California, arbitration agreements can be imposed as a condition of being given employment, or even continued employment, so long as they are not both substantively and procedurally unconscionable. I draft mine to be consistent with what are called the “Armendariz factors” after the seminal case on same.

I’m on a plane about to take off and can’t elaborate right now, but check it out on the Google.

[Hari_Seldon]

There are many cases in which NDAs are against the public interest. Aside from the ones mentioned above, I recall that the result of the investigation of the Hyatt Regency walkway collapse (Hyatt Regency walkway collapse - Wikipedia) was sealed by an NDA. Now this was an engineering disaster and it is in the public interest that architects and engineers know what went wrong. In actual fact, enough leaked out that the cause is generally known. But suppose it hadn’t and there had been a second disaster with the same cause? Imagine if the results of accident investigations of airline crashes had been kept secret.

On the other hand, there was a sealed settlement in a copyright dispute between two of my colleagues and there is really no public interest in the details. But no one is going to die from copyright infringement and it was of interest only to the two parties.

[Really_Not_All_That_Bright]

@Hari_Seldon

There are many cases in which NDAs are against the public interest. Aside from the ones mentioned above, I recall that the result of the investigation of the Hyatt Regency walkway collapse (Hyatt Regency walkway collapse - Wikipedia) was sealed by an NDA. Now this was an engineering disaster and it is in the public interest that architects and engineers know what went wrong. In actual fact, enough leaked out that the cause is generally known. But suppose it hadn’t and there had been a second disaster with the same cause? Imagine if the results of accident investigations of airline crashes had been kept secret.

What “investigation” was sealed? There were dozens of private lawsuits resulting from the collapse, and other than the settlement amounts none of that information is sealed.