{"id":39028,"date":"2020-02-22T08:45:04","date_gmt":"2020-02-22T16:45:04","guid":{"rendered":"https:\/\/www.politicsplus.org\/blog\/?p=39028"},"modified":"2020-02-22T08:45:04","modified_gmt":"2020-02-22T16:45:04","slug":"everyday-erinyes-205","status":"publish","type":"post","link":"https:\/\/www.politicsplus.org\/blog\/2020\/02\/22\/everyday-erinyes-205\/","title":{"rendered":"Everyday Erinyes #205"},"content":{"rendered":"

Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto<\/span><\/strong>, Megaera<\/strong><\/span>, and Tisiphone<\/span><\/strong>. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”<\/p>\n

There’s pretty well nothing in this article which couldn’t have already been written (and much of it actually was, regarding Bill O’Reilly) about Trump and Weinstein and a host of others. It’s relevant now – well, it’s relevant<\/strong> all the time, but it’s in the news<\/strong> now because Bloomberg is in the news. And it does clarify the difference between two categories of what are generally lumped together as “NDA”s, and also goes into what some state governments are attempting to to to minimize\/mitigate unfairness.
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Nondisclosure and secrecy laws protect Bloomberg \u2013 not the women who sued him<\/h1>\n
Billionaire Mike Bloomberg and Sen. Elizabeth Warren had a heated exchange.
\nAP Photo\/John Locher<\/span><\/span><\/figcaption><\/figure>\n

Elizabeth C. Tippett<\/a>, University of Oregon<\/a><\/em><\/p>\n

Billionaire and former New York City Mayor Michael Bloomberg received a lot of flak<\/a> at the Feb. 19 Democratic debate for his refusal to release employees who sued his company from nondisclosure agreements.<\/p>\n

He admitted to having a \u201cfew nondisclosure agreements,\u201d after Sen. Elizabeth Warren challenged him over the issue<\/a>. They are \u201cagreements between two parties that wanted to keep it quiet and that\u2019s up to them,\u201d he added. \u201cThey signed those agreements, and we\u2019ll live with it.\u201d<\/p>\n

These types of agreements, also known as NDAs, have been blamed for keeping women silent about sexual harassment and assault in the workplace, particularly in the #MeToo era<\/a>.<\/p>\n

Such contracts, written to keep business information or settlement terms confidential, have been<\/a> targeted by state lawmakers<\/a> in recent years<\/a>, with varying degrees of success.<\/p>\n

What exactly are nondisclosure agreements? And why haven\u2019t legislatures been able to fix the problem?<\/p>\n

Confidentiality agreements vs. settlements<\/h2>\n

Media accounts tend to refer to \u201cnondisclosure\u201d agreements as a generic label for any contract that requires someone to keep a secret.<\/p>\n

But when I worked as an employment lawyer, we dealt with two different types of agreements containing nondisclosure provisions: standard confidentiality agreements<\/a>, which aim to protect an employer\u2019s business secrets; and settlement agreements, intended to resolve actual or potential legal claims.<\/p>\n

Standard confidentiality agreements are quite common. Employers typically ask employees to sign them at the start of employment to protect the company\u2019s research and development, trade secrets and other nonpublic information.<\/p>\n

The problem is that an employee without legal training might believe that these agreements are more restrictive than they actually are. The contracts tend to define \u201cconfidential information\u201d very broadly, and a worker might assume he or she can\u2019t speak out about discrimination or harassment.<\/p>\n

Legislatures like California<\/a> have tried to address this problem by prohibiting employers from demanding confidentiality about \u201cunlawful acts in the workplace\u201d \u2013 like sexual harassment \u2013 as \u201cterm or condition\u201d of employment.<\/p>\n

This legislative approach can be effective in limiting nondisclosure provisions in standard employer agreements. Companies can comply with the statute by including a carve-out clarifying that employees are allowed to disclose harassment or other unlawful activity.<\/p>\n

It\u2019s an elegant legal fix. Companies can still protect their trade secrets through a standard confidentiality agreement. At the same time, the carve-out educates employees about their right to speak out or pursue legal action.<\/p>\n

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Employees might assume that standard confidentiality agreements extend beyond business information.<\/span>
\nnito\/Shutterstock.com<\/span><\/span><\/figcaption><\/figure>\n

Settlement agreements are different<\/h2>\n

Settlement agreements are a lot less common. And they present more difficult questions when it comes to secrecy.<\/p>\n

Settlement agreements tend to come about when an employee is leaving a job and the employer is paying him or her in exchange for waiving legal claims. They often arise if an employee has threatened to bring a lawsuit or actually filed one against the company. For example, in 2017 former Fox News host Bill O’Reilly reportedly secretly settled<\/a> a sexual harassment claim by a network contributor for US$32 million.<\/p>\n