That NDA you signed? It may not be the steel trap your boss thinks it is…
Despite what your corrupt boss may have told you, an NDA can’t be used to conceal crimes.
It’s impossible to forget how it all went down in the case of Harvey Weinstein: Dozens of women, spanning multiple decades, had horror stories about the powerful producer. Stories of rape, sexual assault, harassment, blacklisting, violence. But for years, most of the women he harmed were afraid to tell their stories—in many cases, for fear of legal repercussions. Why? Because they signed NDAs.
Once upon a time, nondisclosure agreements (NDAs) were meant to help companies protect their trade secrets—so that workers couldn’t sell off proprietary information to their employees’ competitors. (How do you think Coca Cola has protected that secret recipe all these years?)
These days, though, the powerful and corrupt have adopted the use of NDAs for something more sinister: to pressure and intimidate their underlings into silence about their bad acts. BUT, as Theranos whistleblower Tyler Shultz noted: Fraud is not a trade secret. A lot of other bad behavior isn’t, either.
“You can't use a legal document to conceal crimes.” —Jennifer Davidson, one of the women who blew the whistle on The Knot
One of the consequences of NDA overuse has been unchecked wrongdoing, fraud or corruption at corporations like The Knot, where, as detailed by the New Yorker a few weeks back (and us previously 😃) executives had allegedly defrauded advertisers for years. “Nondisclosure agreements really go a long way toward concealing bad actors and wrongdoing within the walls of corporate America,” said Jennifer Davidson, one of the women who blew the whistle on The Knot.
But there’s a common misconception about NDAs that Davidson, from experience, wants to clear up. “You can't use a legal document to conceal crimes,” she said. The NDA you may have signed is not actually protecting your boss from you telling the truth about his or her behavior, unless they make you believe you have to keep quiet. You don’t!
“We've heard it over and over again. ‘I signed an NDA,’” Davidson said. “But that NDA only applies to normal things. It does not apply to fraud and concealing fraud, concealing wrongdoing.”
If you are an employee that knows about wrongdoing, even if you are under an NDA, you can absolutely take that information to an attorney. Beyond that, you absolutely can take certain information to federal authorities if you think something is not right.
The process, however, can be an intimidating one. Even reading through the bloody document can be intimidating. So, if you’ve got information you know the world should hear about, but you’re being ignored (or threatened!); or if you don’t know what your legal rights are in relation to the situation; or if you don’t even know how big a deal what you’re seeing really is, Psst can help. Though you have probably never found yourself in this situation before, to us, it’s old hat.
That’s what we did with Jennifer Davidson and The Knot whistleblowers, whose story is continuing to have repercussions for having been brought forward. Because if you’re going to go up against a huge corporation or other huge entity armed with lawyers—eek, don’t do it alone. Drop a line instead.