November 18, 2022

With Michael Bloomberg in the Race, It's Time We Talk About NDAs (again)

If you watched the Democratic primary debate before the Nevada Caucus, then you'll know that non-disclosure agreements (NDA) are back in the news. On stage, both Senator Elizabeth Warren of Massachusetts and former vice president Joe Biden pointed to the numerous NDAs billionaire nominee hopeful Michael Bloomberg's company has signed with former employees. 

Some of these NDAs, Warren and Biden allege, were the conclusion of workplace harassment cases and have called into question whether someone who has a history of workplace harassment is an appropriate choice for president. They also decried what they saw as a lack of transparency, which would prevent voters from making an informed decision about Bloomberg and his record. When pressured by the two, Bloomberg refused to release his accusers from their NDAs, although in subsequent days Bloomberg stated that several would be released from their NDAs if they so chose.  

The scrutiny over Bloomberg's NDAs and his alleged misogyny means that it's time we revisit a topic we wrote about last year and the year before. In the wake of #MeToo and other movements and organizations which dragged workplace harassment and sexual assault in the public eye, New York State made sweeping changes to its workplace harassment laws, including changes to the types of confidentiality agreements plaintiffs were able to enter. 

In 2018, Governor Cuomo signed a law that banned many NDAs and mandatory arbitration for complaints, but some activists and policymakers argued that the state had focused too narrowly on sexual harassment, and the 2019 laws expanded the 2018 laws to include protections against NDAs in other forms of workplace discrimination. 

While NDAs are not banned, they can be used if and only if the person alleging discrimination chooses to enter one. NDAs can still be used as an alternative to entering litigation while providing closure to a case, but the law ensures that entering an NDA is the choice of the plaintiff alone, and they can no longer be legally coerced into an NDA. Currently, there is still financial incentive for plaintiffs to choose confidentiality, and for employers to request it, but continued public conversation about NDAs will certainly keep this area of the law evolving.

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