Nondisclosure Agreements Have a Valid Purpose, But They Can Also Be Misused, Experts Say

NDAs have also been used in employment disputes to help resolve or preempt litigation, but since their ability to be weaponized to conceal pervasive sexual harassment was revealed by the #MeToo movement, many in the legal profession are beginning to reevaluate their primacy.

“Unfortunately, we’re seeing that these broadly drafted NDAs are being imposed during the course of employment with the implication, ‘You better not speak up,'” Andrea Johnson, senior counsel for state policy at the National Women’s Law Center, told Newsweek. “Even if those threats might not have legal force, they’re still being made.”

The notion that these agreements, especially in the workplace, are always fully consensual raises eyebrows among some legal observers.

“It’s a bargaining chip they can use in obtaining a settlement to have things go away more quickly,” Johnson said. “Right now employers hold all the cards. Survivors often feel they have little power to do anything but accept an NDA.”

Coercive factors such as a fear of retaliation or workplace notoriety can tilt the power imbalance in the direction of the employer, who almost always prefers to include an NDA in any settlement claim.