Journalists aren’t as tied by NDAs as they think

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There’s one thing most every woman and man in media who has kept silent about sexual harassment has in common: nondisclosure agreements. While employers—in media and elsewhere—now appear to be taking sexual harassment and abuse more seriously, they’ve given precious little attention to the role NDAs have played in keeping abuse quiet, in some cases for decades.

Bill O’Reilly and the late Roger Ailes at Fox News kept their victims mum with settlements that included NDAs. The circle of secrecy didn’t stop there: NDA clauses were also a standard part of Fox employment contracts, ensuring neither victims nor witnesses could say anything. Disgraced Today show anchor Matt Lauer’s astonishing abuses—which included sexually assaulting a woman in his office, after which she passed out and required medical attention—were kept under wraps in part via NDAs that applied to employees leaving the show. NDAs helped create a culture in which Charlie Rose, who was fired from CBS last month, Mark Halperin, who was pushed out at NBC News, and NPR’s Michael Oreskes were able to prey upon women with impunity.

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Print media across the political spectrum is no different. In November, The New Republic publisher Hamilton Fish stepped down amid decades’ worth of sexual-assault allegations that include strangling a female subordinate at The Nation Institute 10 years ago. As with the others, Fish’s career-long trail of silence was paved by a “sprawling non-disparagement provision” that applied to Institute employees after his departure.

There’s an irony to silencing employees in a profession that champions whistleblowers and relishes shining light on other institutions, notes Jack Doppelt, a professor at Northwestern’s Medill School of Journalism who specializes in media ethics and law. “For all the years that journalism has worried sanctimoniously about the wall between advertising and editorial, the wall that is most often violated is the wall between corporate branding and journalistic freedom,” Doppelt tells CJR. “The industry’s ability to be hypocritical on this point—either without realizing it or out of shamelessness—is almost beyond imagination.”

 

While employers now appear to be taking sexual harassment and abuse more seriously, they’ve given precious little attention to the role NDAs have played in keeping abuse quiet, in some cases for decades

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Non-disparagement and nondisclosure clauses are now boilerplate in media contracts, purportedly to protect trade secrets and ensure employees don’t trash their employers. These play a passive—albeit no less pernicious—role in enabling sexual harassment, muzzling employees across the board. But NDAs are also used more directly to protect abusers as part of settlements: When victims come forward to their employers, the company often protects the assailant by paying off the accuser and requiring confidentiality in return. NDAs included in settlement agreements typically require that the employee not even disclose the existence of the agreement or its terms.  

Some employers force journalists to sign blanket NDA clauses before they join a company. Others require them in exchange for severance deals. During recent layoffs, employees signed them en masse at HuffPost, Mic, Vice, The Guardian, and MTV, promising away their ability to speak about the company in exchange for severance pay.

Regulatory agencies like the Securities and Exchange Commission, the Equal Employment Opportunity Commission, and the National Labor Relations Board, which has ruled against NDAs for hampering employees’ ability to unionize, have in the past several years begun to take a harder tack against NDAs. The use and abuse of NDAs is so widespread the NLRB and EEOC are currently drafting guidelines to stop companies from writing them so broadly, according to the NLRB. States, too, are taking note. Elected officials in Arizona have proposed legislation banning NDAs as part of settlements, which one lawmaker called a “sexual predator loophole.”

RELATED: What we found when we asked newsrooms about sexual harassment

(Disclosure: I signed nondisclosure agreements as a condition of severance when leaving The Huffington Post and Mic.)

Media companies use NDAs for the same reason as other corporations: to protect their brand from employees who have legitimate (as well as spurious) grievances. “Employers worry that individuals will turn into whistleblowers out of spite, so they require them to sign NDAs for extra protection,” says Jennifer Pacella, a professor of law at the City University of New York who has written extensively about NDAs and whistleblower law.

As the current rash of allegations against major figures in Hollywood, entertainment, and media show, sexual assault in the workplace is far more common than many believed. But in a number of the high-profile cases, there’s evidence to suggest media company executives were more interested in protecting high-powered, expensive talent than protecting workers lower on the totem pole. Hence, in most cases, it is typically the victim who leaves the company.

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“The problem is that NDAs enable a lot of serial harassers, then it becomes part of the workplace culture, the cost of doing business,” says Orly Lobel, a professor of labor and employment law at the University of San Diego. “It’s a vicious cycle.”

What most journalists don’t know is that NDAs—the ones that purport to apply in perpetuity and forbid you from saying anything bad about the company or anyone associated with it—are often not enforceable in court. This is for the same reason a judge can’t enforce a schoolyard promise to hold one’s breath for eternity: Existing law places limits on what two parties can agree to.

“People are generally not aware that these NDAs are not enforceable, but that doesn’t mean employers aren’t going to use them anyway,” Lobel says.

 

The industry’s ability to be hypocritical on this point—either without realizing it or out of shamelessness—is almost beyond imagination.”

 

Without going to court, it’s difficult to tell whether any given agreement is legally valid in the given circumstances. But the effect of NDAs is largely extra-legal: Employers hardly ever go to court to enforce them. This is because they often know the agreements won’t hold up, and it’s not cost-effective to launch a legal offensive.

Even if a journalist signs an NDA, whistleblower statutes and existing court rulings still protect them from retribution if they speak out about illegal behavior, including sexual harassment. In fact, courts can throw out NDAs merely if they go against existing public policy. Some states like California even prescribe what employers can ask employees to keep mum about, limiting it to trade secrets and requiring employers to specify the information they want concealed.

But companies have the incentive to write these clauses as broadly as possible. Whether an NDA ever gets tested in court, its very inclusion in a contract has a strong chilling effect on speech. When it comes to writing NDAs, employers typically think the scarier, the better. Hence, this quote from an online sample of one such agreement:

You agree that you will never make any negative or disparaging comments (orally or in writing) about the Company or its stockholders, directors, officers, employees, products, services or business practices.

In an industry that is shrinking, journalists are already terrified of losing their jobs and not being able to find work in the future; most employment in the industry is “at will,” which means the employee can be terminated without cause at any time.

“Employees are really fearful not only about being fired by their current employer, but about being pegged as a troublemaker once they are let go,” says Lobel, who served on an Obama White House commission scrutinizing nondisclosure and noncompete agreements. “Even if they knew no court would enforce an NDA against them, most people who are risk averse are not going to test the limits.”

Legal scholars who study NDAs say employees typically sign them under duress. Potential hires are unlikely to put up a fuss about a nondisclosure clause for fear it will cost them the job. When an employee is fired or let go without notice, they typically must choose between failing to pay the next month’s rent and signing an NDA to get severance.

 

The use of nondisclosure agreements speaks to the culture and the tone at the top—do you want to be a place of employment that’s relying on these tactics to scare people or treat people decently?”

 

“Workers’ ability to resist these clauses is limited because of the individual context in which they are signed,” says Miriam Cherry, co-director of the William C. Wefel Center for Employment Law at Saint Louis University. “It can end up meaning a lot of stuff goes unreported or under the radar.”

In the case of sexual harassment, victims leaving a job frequently want to put the ordeal behind them and not make waves.

“It was more important for me to be financially stable than to speak out,” said one digital journalist who experienced sexual harassment at work and signed an NDA. The journalist spoke on condition of anonymity to avoid repercussions. “Had I been able to vent publicly, it would have made it a lot easier for me to get over it.”

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Part of the reason regulatory agencies have begun to take aim at NDAs is that they have evolved so far from their original purpose, which was to protect trade secrets and proprietary company information—not create a blanket of silence around an organization. Cherry said NDAs might make sense for a CEO who wants to jump ship and take everything he knows with him, but they are used regularly even for lower-level workers who, especially in media, are not holding onto sensitive business information.  

The NLRB, which enforces US labor law, has found that NDAs cannot be used to stop employees from talking about sexual harassment or gender discrimination at work. As the University of Chicago’s Hiba Hafiz pointed out in The Atlantic, the board also considers it an unfair labor practice to ask employees not to “publicly criticize, ridicule, disparage, or defame” an employer or the company’s “directors, officers, shareholders, or employees.” Courts have also struck down NDAs when they interfere with investigations by the EEOC, which upholds civil-rights laws in employment. “In many cases of widespread discrimination, victims suffer in silence,” wrote a judge for the First Circuit Court of Appeals in 1996. “A sprinkling of settlement agreements that contain stipulations prohibiting cooperation with the EEOC could effectively thwart an agency investigation.”

Quite simply, companies aren’t generally allowed to cover up wrongdoing with NDAs, but the fact that employees don’t know this—and have few labor protections—makes them effective at doing just that. But for all the energy that media companies expend in ensuring their workers keep quiet, it would be far more efficient to address the problems that make them want to speak out in the first place.

“The use of nondisclosure agreements speaks to the culture and the tone at the top—do you want to be a place of employment that’s relying on these tactics to scare people or treat people decently?” Pacella said. “These documents wouldn’t be needed if there was no wrongdoing.”

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Correction: This article previously stated the allegations against Hamilton Fish at the Nation Institute occurred 30 years ago. They occurred about 10 years ago.

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Gabriel Arana a contributing editor at The American Prospect. His work has appeared in The New York Times, HuffPost, Salon, The Nation, The New Republic, The Atlantic, Slate, and The Daily Beast. He lives in New York City.