Almost every day I get at least one search string about confidentiality agreements, non-disclosure agreements and such.
They seem to be an area of intense interest to a lot of people.
As a signatory to a settlement agreement containing a non-disclosure clause, I was and still am one of those interested people. Because, at least on the surface, these clauses would seem to be a breach of the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. [My bolding]
Of course this seems to bind Congress, not necessarily corporations and other employers. (I won’t go into the Supreme Court’s Citizens United interpretation of this amendment as it applies to corporations’ “freedom of speech” … oh well I just went into it, but I only dipped my toes; won’t be diving.)
Because Gretchen Carlson’s contract with Fox News has nothing to do with Citizens United…except, of course, that Fox News takes free advantage of Citizens United while apparently not giving the same free-speech advantage to its employees. Oh hell, I waded in up to my knees. I’ll stop now. Especially because I’m not sure that I’m making any sense.
If the former Fox News anchor’s suit is forced into arbitration, her chances of winning are lessened, and little will be made public about it.
Source: Gretchen Carlson’s Contract Could Shroud Her Case in Secrecy – The New York Times
So not only does this case highlight the disadvantage to employees of non-disclosure agreements, it highlights the huge disadvantage to employees and the rest of us individuals of arbitration clauses in our employment and consumer contracts.
Here’s a particularly relevant section from the Times article:
The use of arbitration has proliferated over the last decade, as a soaring number of corporations have sought to keep employment disputes private. That is because arbitration in general is a private process, conducted out of public view with no judge or jury. By using the arbitration clauses to bar people from joining together as a group, employers, both large and small, have effectively taken away one of the few tools that workers have to fight harassment or discrimination.
In a report issued just last week, the Equal Employment Opportunity Commission noted that forced arbitration “can prevent employees from learning about similar concerns shared by others in their workplace.”
And of course Carlson’s case highlights the disadvantage women have in their employment: we are the most likely victims of sexual harassment and unpleasant sexual pressure in our work places.
I should point out that despite Carlson’s non-disclosure clause, she has disclosed–by filing her lawsuit. Indeed, I read about Donald Trump’s lawsuit against his former employee, invoking a fierce non-disclosure agreement the guy had signed. As National Memo points out, by filing the lawsuit, Trump has inopportunely opened the way to his ex-employee’s embarrassing disclosures in court. Bad timing.
Which points up a serious weakness in arbitration clauses, at least when they are combined with non-disclosure clauses: does the employee has a lot of nasty secrets against his former employer? Because if an employer tries to invoke an arbitration clause against an ex-employee for disclosure, the ex-employee can file a case, a protest in effect, in open court…which discloses all the disclosures!
Feast away, simultaneously grinding your teeth.
Keeping with the bathing theme (see above–or don’t bother seeing above), I’m going to take a shower now.
UPDATE(S):
(1) Source: Roger Ailes and 21st Century Fox Said to Be Negotiating His Departure – The New York Times
(2) A lawyer for a former Fox News anchor, Gretchen Carlson, bemoans the confidentiality clauses of arbitration agreements. Source: Secrecy in Arbitration: The Suit Against Roger Ailes – The New York Times
(3) Mr. Ailes, who had run the cable network since its inception, was cut loose after a sexual harassment suit filed by Gretchen Carlson, a former Fox anchor. Source: Roger Ailes Is Out as Head of Fox News – The New York Times