Recently, allegations of sexual harassment and assault in the workplace have been rampant. One highly-publicized case is that of Harvey Weinstein, a Hollywood producer accused of sexually harassing various employees at his company for decades. He allegedly used non-disclosure agreements (NDAs) and confidential, out-of-court settlements to prevent these stories from being exposed. The law may have facilitated silence in this case, however it continues to play a vital role in protecting workers’ rights both in this case and many others.
NDAs, originally designed to prevent employees from disclosing trade secrets, may also be used to silence employees’ public speech regarding non-illegal employer misconduct. Courts may decide to enforce NDAs if they are reasonable. However, courts may also choose not to enforce them if the employee’s interest outweighs the employer’s interest or if the NDA is contrary to public policy.
Out-of-court settlements may provide victims with monetary payments in exchange for their silence about the terms of the agreement and details of the case. Victims face substantial consequences for breaching these confidentiality provisions, sometimes millions of dollars, as in the Weinstein case. However, if the alleged sexual harasser publicly comments on the confidentiality provisions, then he or she may be sued for breach of contract and will be prohibited from suing the victim for that same breach.
Arbitration provisions prevent employees from suing in court, typically ensuring that cases are heard in less formal, confidential arbitration proceedings. This can be problematic for employees seeking to collectively pursue claims. The Supreme Court, which has a history of ruling in favor of arbitration agreements, is currently faced with the decision of whether these provisions violate federal law.
Sexual Harassment Laws
State and federal laws prohibit sexual harassment in the workplace. The Civil Rights Act of 1964 forbids employers with 15 or more employees from discriminating on the basis of sex and other protected characteristics such as race, religion and national origin. Title VII of the Civil Rights Act also protects the Equal Employment Opportunity Commission’s (EEOC) rights to act on behalf of private parties and to vindicate the public interest by invalidating settlement agreements that prevent employees from filing charges or from cooperating with the EEOC in its sexual harassment investigations.
Another law that protects workers’ rights to come forward with sexual harassment allegations is the National Labor Relations Act. Under this Act, employers may not prevent workers from discussing their experiences with sexual harassment at work or related to work. Although contracts may contain some boilerplate non-disparagement provisions, these provisions may not be enforced without violating federal labor law.
Legal and financial penalties for violating NDAs and confidentiality agreements can be severe. It is prudent to consult with a qualified and experienced employment lawyer who can help you understand the terms of these agreements and the potential consequences for violation.
Marlton Sexual Harassment Lawyers at McOmber McOmber & Luber, P.C. Seek Compensation for Victims of Workplace Harassment and Assault
If you were the victim of workplace sexual harassment or assault, contact a Marlton sexual harassment lawyer at McOmber McOmber & Luber, P.C.. We are skilled in handling contractual disputes through both negotiation and litigation. We represent clients in Red Bank, Middletown, Cherry Hill, Marlton and throughout New Jersey. Call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, our Newark office at 973-878-9040, or contact us at 888-396-0736 or online for a free consultation.