HAve you signed an NDA?
If you have already signed and NDA and regret it, then please consider the following, a large proportion of NDAs are unenforceable and are documents that rely on the threat and fear of retaliation. The reality is the guilty party are unlikely to want to cause publicity by suing you if you contest it. We cannot guarantee this so here are some actions you could take:
Share your story
Write your own story (without any personal identifying information) for our “testimonies” page.
Inform your member of parliament
Assert your support for the ban of NDAs. Tell your government representative about the stifling abuse and prevalence of NDAs.
Involve your lawyer
Telling your lawyer you regret your NDA agreement is not a breach of contract. Your lawyer may not realise how much you resent the NDA and how much suffering it has caused you.
Engage with your union
Tell your union representative about your dissatisfaction with the NDA and request the union to avoid future NDA compromises. Encourage education and safeguards for union members.
Ask for a release
Consider asking the other side to release you from your NDA. We have provided a template letter to help you to do this.
Reclaim your power,
We want to highlight how detrimental NDAs are, when coerced on people. Bad publicity will make enforcing your compliance unappealing for organisations supporting NDAs.
NDAs signed under duress or without comprehension of legal language and consequences can be challenged in court.
THINKING OF SIGNING an NDA?
It has become ’standard’ for lawyers to ask for an NDA in settlement or grievance negotiations. But an NDA is NOT a required part of of this process - you do not have to agree and certainly not without thinking through the real consequences of being gagged for ever. The only required clause in a settlement agreement is a “release” that says that you agree not to take legal action with regard to the complaint now or in the future
Ndas are not REQUIRED FOR SETTLEMENT
NDAs are not mandatory for a settlement, but for many lawyers they have become the "new normal". You can push back. The employer or institution's goal is to avoid public embarrassment or bad press.
Protect your identity
Negotiate for a one-sided confidentiality clause that protects your identity but does not stop you from speaking about your experience to whomever you wish.
Negotiate for fewer restrictions in the NDA - for example, communication with family, friends and health professionals or therapists
Think and consult
Negotiate for a period to think and consult with others. This is not high pressure sales! You are not required to sign on the spot, but many people feel rushed into agreement.
It is your right to decline
If you are not comfortable or do not fully understand the NDA, it is always your right to decline. Most cases (95%) will settle anyway, with or without an NDA.
RECOGNIZING AND UNDERSTANDING AN NDA
A non-disclosure agreement or an NDA is a signed legal document that restricts sharing information with others that is designated as “confidential”. This means at minimum the whole agreement and its terms, and sometimes more besides (see below).
An NDA has no time limits and is intended to bind the parties to stay silent for ever.
These agreements are sometimes referred to as confidentiality or compromise agreements.
When might I be asked to sign an NDA?
Non-disclosure agreements are often used to cover up any situation that the other side does not want to be known. In other words, any situation that brings shame on them personally or affects their public reputation if the other side is a company or institution.
NDAs are also sometimes used pre-emptively - for example, at the beginning of an employment relationship, before a particular event or a meeting - before any problems or conflicts have arisen. This is to ensure that is there is a complaint or other conflict, you are already bound not to speak about it.
NDAs are legitimate for the protection of intellectual property or trade secrets but make sure this is all they cover.
Here is a breakdown of where we see NDAs most often.
IN the workplace
In disputes outside the workplace
Before you begin to negotiate or mediate, or before an investigation
HOW WILL I RECOGNISE AN NDA
An NDA clause will be part of a much longer agreement that you make to either settle (resolve and end) a formal complaint or a legal claim, or an agreement you sign to begin a negotiation/ mediation/ investigation about your situation.
There are many different types of NDA clauses and some have wider reach than others. The language is often very dense and complicated, but here are some examples of the most common clauses which will help you to recognize if you are being asked to sign an NDA.
A typical NDA
Exceptions to the NDA
Other common nda terms to watch out foR
If you have other questions that are not answered here, please email them to info @CBMS.com and we shall do our very best to respond.
Please note that none of this constitutes legal advice specific to your case but information for public education.
Myth and reality
NDAs protect victims after a traumatizing event
NDAs often retraumatize victims by isolating them from potential supports and preventing them from discussing what happened
MYTH: NDAs protect victims after a traumatizing event
REALITY: NDAs often retraumatize victims by isolating them from potential supports and preventing them from discussing what happened
NDAs are necessary to protect victims’ confidential information
It’s easy to draft confidentiality clauses that protect victims’ information while still allowing them to speak out if they choose
MYTH: NDAs are necessary to protect victims’ confidential information
REALITY: It’s easy to draft confidentiality clauses that protect victims’ information while still allowing them to speak out if they choose
NDAs restricting a victim’s ability to speak to ANYONE about what happened for an unlimited time are “standard”
NDAs, like any other clause, are negotiable. You can reject one entirely, extend the parameters of who the victim can tell their story to, or limit how long the NDA applies
MYTH: NDAs restricting a victim’s ability to speak to ANYONE about what happened for an unlimited time are “standard”
REALITY: NDAs, like any other clause, are negotiable. You can reject one entirely, extend the parameters of who the victim can tell their story to, or limit how long the NDA applies
Employers won’t settle disputes if NDAs aren’t an option
When victims push back against NDAs, employers frequently agree to settle disputes without restricting a victim’s right to tell their story
MYTH: Employers won’t settle disputes if NDAs aren’t an option
REALITY: When victims push back against NDAs, employers frequently agree to settle disputes without restricting a victim’s right to tell their story
It’s important for employers to be able to protect their reputations with NDAs
NDAs should never be used to protect an employer’s reputation if they allow employers to “pass the trash” and put other people at risk
MYTH: It’s important for employers to be able to protect their reputations with NDAs
REALITY: NDAs should never be used to protect an employer’s reputation if they allow employers to “pass the trash” and put other people at risk
NDAs are reasonable and not overly restrictive
NDAs are often too broad, and can prevent victims from speaking to friends, family, and even therapists about what happened
MYTH: NDAs are reasonable and not overly restrictive
REALITY: NDAs are often too broad, and can prevent victims from speaking to friends, family, and even therapists about what happened