Almost every day I get at least one search string about confidentiality agreements, non-disclosure agreements and such.<\/p>\n
They seem to be an area of intense interest to a lot of people.<\/p>\n
As a signatory to a settlement agreement containing a non-disclosure clause, I was and still am one of those interested people<\/a>. Because, at least on the surface, these clauses would seem to be a breach of the First Amendment:<\/p>\n 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;<\/strong> or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.<\/em> [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<\/a> 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.)<\/p>\n Because Gretchen Carlson’s contract with Fox News has nothing to do with Citizens United<\/span>…except, of course, that Fox News takes free advantage of Citizens United<\/span> 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.<\/p>\n If the former Fox News anchor\u2019s suit is forced into arbitration, her chances of winning are lessened, and little will be made public about it.<\/p><\/blockquote>\n Source: Gretchen Carlson\u2019s Contract Could Shroud Her Case in Secrecy – The New York Times<\/a><\/em><\/p>\n 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.<\/p>\n Here’s a particularly relevant section from the Times article:<\/p>\n 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.<\/em><\/p>\n In a report<\/a> issued just last week, the Equal Employment Opportunity Commission noted that forced arbitration \u201ccan prevent employees from learning about similar concerns shared by others in their workplace.\u201d<\/em><\/p>\n 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.<\/p>\n I should point out that despite Carlson’s non-disclosure clause, she has<\/em> 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, <\/a>by filing the lawsuit, Trump has inopportunely opened the way to his ex-employee’s embarrassing disclosures in court. Bad timing.<\/p>\n 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!<\/p>\n Feast away, simultaneously grinding your teeth.<\/p>\n Keeping with the bathing theme (see above–or don’t bother seeing above), I’m going to take a shower now.<\/p>\n UPDATE(S)<\/strong>:<\/p>\n (1) Source: Roger Ailes and 21st Century Fox Said to Be Negotiating His Departure – The New York Times<\/a><\/em><\/p>\n (2) A lawyer for a former Fox News anchor, Gretchen Carlson, bemoans the confidentiality clauses of arbitration agreements<\/em>. Source: Secrecy in Arbitration: The Suit Against Roger Ailes – The New York Times<\/a><\/em><\/p>\n (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. <\/em>Source: Roger Ailes Is Out as Head of Fox News – The New York Times<\/a><\/em><\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" 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 … Continue reading
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