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‘How much is my silence worth?’: Amid a racial reckoning, women are rejecting NDAs

As the chilling effect of confidentiality agreements crystallizes, some employees are refusing to sign NDAs or breaking them to speak out, risking financial and legal consequences.

‘How much is my silence worth?’: Amid a racial reckoning, women are rejecting NDAs
[Photo: PrimeTime_Productions/iStock]
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On Juneteenth, Tiffany Wines published a litany of allegations concerning her former employer. “Complex Networks would and could not exist without Black art, Black consumers, and Black labor, but the company itself is not a safe space for its most vulnerable population: Black women,” she wrote in an open letter. “I want to address the toxic workplace culture steeped in misogyny, anti-Blackness, favoritism, rape culture, and pay inequity across demographic lines.”

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Wines, who is Black and worked on the social media team at Complex, had signed a confidentiality agreement when she left the media company in February, in exchange for a severance payment of $15,000. For months beforehand, Wines says, she tried to work with HR after reporting her then-manager and requesting that she not be subjected to one-on-one meetings with him. “I just felt so uncomfortable with him,” Wines says. “I felt gaslighted. I felt demeaned. So that was why things came to a head. I was like, ‘I can’t work under this person anymore.'”

Wines had also endured physical harm during her tenure, when she unknowingly ate drug-laced cookies that were left out in the office. “It was incredibly traumatic,” she says. “I was going through a lot of stuff last year. But that was one of the reasons that I ended up starting therapy. Because after something like that happens in your workplace, where it’s distinctly against the rules—no drugs are allowed in the office—how do you feel safe there again?”

(In a lengthy statement, a Complex spokesperson said the company had launched a “full cultural audit” and anonymous hotline to report misconduct and opened up an investigation into recent allegations. “We recognize being a great place to work starts with fostering a safe, inclusive and respectful workplace,” the statement reads. “Recent events have compelled us to take a deeper look at ourselves and the way things have been, especially for our Black and female employees, and we know there is work to be done to evolve our culture into one we’re proud of.”)

Complex eventually gave Wines three options, one of which was a separation agreement with a nondisclosure agreement and nondisparagement clause. By then, Wines says, she had reached her breaking point and was ready to leave the company. While weighing her options, she sent a tweet that didn’t name Complex but obliquely referenced her experience there. “Does every industry make a habit of belittling its workers till they reach a breaking point, then silencing them with NDAs so no one responsible is ever held accountable, or just new media?” Almost immediately, she says, Complex threatened to rescind the severance offer, locked her out of her work email and Slack, and asked her to take down the tweet.

From that point, Wines felt immense pressure to take the offer. Once she signed away her right to talk about her experience at Complex, Wines never thought she would come forward with her story. “I was so paranoid that I would be taken to court, if anything could even be perceived to be about the company,” she says.

Confidentiality agreements like the one Wines signed have an ugly history in corporate America, where they have long been used by employers to silence allegations of workplace abuse.

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Nondisclosure agreements were initially popularized by the tech industry to protect trade secrets and proprietary technology. But since the 1980s, NDAs have extended into employment contracts in all sorts of industries, as well as settlement agreements. Since 2017, the #MeToo movement has shed light on the extent to which NDAs have protected powerful men accused of sexual harassment and/or assault. It was, in part, a patchwork of nondisclosure agreements that shielded Harvey Weinstein from scrutiny for decades, not to mention the likes of R. Kelly and Bill O’Reilly.

Now, amid a national reckoning over racial injustice, some are breaking their NDAs to speak out about incidents of racism and discrimination in the workplace—risking financial and legal repercussions.

Wines felt compelled to say something when, amid national protests against police brutality, Complex released a statement in solidarity with the Black community. “That infuriated me,” she says. “It was so contradictory to the day-to-day experience of working there.”

A number of former employees have echoed Wines’s allegations. “Complex is a machine that grinds up Black women for sport,” Kiana Fitzgerald said on Twitter. Another former employee, who asked to remain anonymous, told Fast Company that she witnessed the sort of mistreatment described by Wines. But as a white woman, she says, she was shielded from the worst of it. “I want to help boost [Wines]. I would love to see her find justice. Her story is more important than mine.”

We were so groomed for an abusive environment and then kind of spit out.”

Like Wines, the former staffer was presented with a nondisparagement agreement in exchange for severance. “I remember reading it and being so down and out—super broke money-wise, but also kind of broken down morally, professionally, and personally,” she says. “There were a few people who got laid off with me, [and] we were like, ‘Fuck this, we’re not going to sign this.’ And then it was like: Can [we] afford not to?”

It was hardly a choice, given one paycheck wouldn’t even cover her rent at the time, so she took the money and moved on. “Looking at it from three years away, it’s like being in an abusive relationship,” she says. “We were so groomed for an abusive environment and then kind of spit out.”

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A moment of reckoning

The chilling effect of confidentiality agreements has become clearer than ever in recent months, as people of color have flooded social media with accounts of harassment and discrimination in the workplace. And yet, despite vociferous calls to curb the prevalence of NDAs in recent years, progress has come slowly: Since 2017, thirteen states in the U.S. have passed bills that curtail or prohibit the use of NDAs in cases of sexual harassment and assault, according to the National Women’s Law Center; however, New Jersey is the only state that renders NDAs unenforceable if a worker speaks out about harassment or any type of discrimination.

Tech giants such as Google and Facebook have caved to public pressure and banned forced arbitration, albeit only for sexual harassment and assault claims. (Forced arbitration agreements often require that workers waive their right to sue as a condition of employment, which forces them to settle any claims confidentially.) But the practice of forced arbitration is actually growing, says employment discrimination lawyer Vincent White. “Even employment defense attorneys are worried about forced arbitration,” he says. “They need those cases to be brought so they’re hired.”

White says the NDA isn’t going away anytime soon either, even in a moment when so many workers are pressing their employers to clean house. “Politicians are taking a lot of half measures,” he says. “Meanwhile, what I see from finance and tech is an arms race to create the most protective NDA.” These companies know they won’t fix their culture issues overnight, he says, which only emboldens them to keep deploying NDAs.

That’s one reason White has teamed up with storytelling platform Lioness to offer free NDA reviews and consultations for employees who are thinking about violating the terms of their agreement. “If I really believed that [companies] were going to do the right thing, I wouldn’t be offering everyone in the country a free NDA review,” he says. “They’re going to protect their interests.” White helps people understand the worst-case scenario of breaking an NDA—how much they might owe a former employer, for example, if they choose to enforce the terms of the agreement.

Since there’s usually money on the table, many employees are incentivized to sign NDAs, even more so when they’re let go with no warning and given little time to think. “The problem still exists that with NDAs come money,” says Nicole Sanchez, the founder and CEO of Vaya Consulting, a firm that helps organizations address diversity and inclusion issues. “That’s the exchange. It isn’t really more complicated than that. It is: How much is my silence worth to me?” The backdrop of the pandemic has made this especially apparent, as many workers have had no choice but to sign away their right to speak out in order to weather unemployment amid a recession.

A push to go public

When Melissa McEwen was laid off from coding platform Glitch in May, it was just two months after the company had unionized. To McEwen and others at the company, the timing seemed suspect. “A couple weeks before they laid us all off, they were like, ‘Oh, we have plenty of runway for the next year,'” she says. “And then all of a sudden they didn’t.” Most of the employees in the union and on the organizing committee were laid off, according to McEwen, though not all. (McEwen herself was not a member of the organizing committee.)

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When the union tried to push back on the terms of severance—namely, to ax the nondisparagement clause—Glitch’s leadership wouldn’t budge. In the end, everyone who was laid off ended up signing an NDA to receive a severance payment. (When reached for comment, Glitch CEO Anil Dash offered the following statement: “There’s no doubt that NDAs are imperfect solutions and have been abused in the industry. We made sure our separation agreements enable people to be able to talk about harassment or discrimination issues if they need to, and we’ll keep iterating on making our agreements more fair by working directly with our workers and their union going forward.”)

A recurring demand posed to companies in the post-#MeToo era has been to release former employees from their confidentiality agreements in instances where they want to go public with their experiences. A cadre of former staffers at the Wing, the women’s coworking space and social club, banded together in June to form a collective called Flew the Coup, which has shared anonymous accounts of mistreatment. After the coronavirus shuttered all Wing locations, most of the staffers who manned the spaces were laid off and signed NDAs in exchange for severance; one of Flew the Coup’s key demands has been that the Wing’s leadership should lift their NDAs. A group of former Black employees at Morgan Stanley has made a similar request, so they can come forward with allegations of racial discrimination while at the company. (The Wing could not be reached prior to publication, and Morgan Stanley declined to comment.)

When faced with more high-profile allegations of misconduct, some employers have obliged: Last fall, NBCUniversal lifted NDAs for those who had been forced to quietly settle allegations of misconduct. And prior to dropping out of the presidential race in March, Michael Bloomberg was pressured into doing the same for a handful of former employees at his company who had levied complaints against him. But for many employers, even as the ground shifts beneath them, releasing their workers from confidentiality agreements is still too big a risk, White says.

They might be understandably worried about, say, leaking trade secrets—after all, the nondisclosure agreement seems to have found a foothold in the tech industry as a means to protect proprietary information. “If we were to wake up tomorrow and decree that all NDAs are defunct, companies would have both legitimate and illegitimate concerns,” White says. Many companies may have the war chests to fight potential legal action, he says, but it’s harder to reverse the damage done to their public image if employees speak out.

No company wants to be on record as sending their lawyer after somebody and having that person also put that on social media.”

Nicole Sanchez
Employees who speak up today might find some security in numbers, or in a company’s desire to preserve—or salvage—its reputation. “I think a lot of us have thought through this,” Sanchez says. “This is the first time I’ve seen that we may have collective protection. No company wants to be on record as sending their lawyer after somebody and having that person also put that on social media.”

But Sanchez reiterates that it’s still a calculated risk to break an NDA publicly. Some agreements are so specific, she says, that someone who violates the terms of their NDA could be on the hook for thousands of dollars each time they disparage their former employer. In other cases, the employee might have to return their severance payment.

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That’s one reason Ariella Steinhorn, the founder of Lioness, partnered with White to help educate workers on the potential risks and the extent to which their NDA could be enforced. “People sign these contracts, and they seem very legally scary,” she says. “The lawyers will say, ‘These are the ramifications should the employers choose to enforce it.’ But what we’re seeing in the submissions we’re getting is that people still feel the desire to speak, no matter what.” That doesn’t always mean publicly disclosing allegations on social media or speaking to a reporter, as Steinhorn points out. “There’s a whisper network that’s still really alive and well—people just talking amongst one another, and people posting on Glassdoor,” she says.

Saying no to the NDA

As employees become increasingly aware of their rights—and the risks of breaking an NDA—some are also pushing back on signing in the first place. In a recent New York Times op-ed, food writer Nicole Taylor detailed her recent decision to turn down a severance package and urged other Black employees to do the same. “If you have the privilege and financial means to do so, say no to separation agreements and general releases,” she wrote. “It’s a form of protest—a declaration to wrongdoers that, at any time, you have the right to share bits or all of your story publicly.”

When Tracy Clayton, the former cohost of the Another Round podcast, was laid off from BuzzFeed in 2018, she did exactly that. Part of her calculus was that BuzzFeed was unwilling to pay her what she felt would be commensurate with her contributions to the company. “I can’t remember the amount that I was offered, but I do remember feeling insulted enough by it to get a lawyer to request more money,” she says. “I ended up not signing in the end because it was less than I felt I deserved after everything I’d done for the company and after all the free labor they got out of me.”

“I made the decision not to sign because I realized that I didn’t need the money they were offering me to survive living alone in Brooklyn.”

Tracy Clayton
Clayton notes that she didn’t need the financial assistance at the time, which empowered her to walk away from the agreement. “I made the decision not to sign because I realized that I didn’t need the money they were offering me to survive living alone in Brooklyn,” she says. “If I were in danger of being evicted or otherwise finding myself unable to meet my basic human needs, I would have had to have signed and stayed quiet, or move back home to Kentucky, which I was honestly indignant enough to do if it came down to it.”

Since leaving BuzzFeed, Clayton has aired criticisms of her former employer on Twitter, calling out BuzzFeed CEO Jonah Peretti for not handing over the rights to Another Round’s back catalog and detailing the fraught negotiations over her severance agreement. (A spokesperson for BuzzFeed News provided the following comment: “BuzzFeed is in ongoing conversations with the co-hosts of Another Round and their representatives on an agreement that would allow them the rights to their back catalogue, and the option to find a new partner for the show.”)

But more than anything, Clayton says that as someone who had been outspoken during her time at the company, signing an NDA just didn’t sit right with her. “I had a feeling deep inside myself that there was a chance that I wouldn’t truly know peace if I didn’t have a chance to tell my story,” she says.

About the author

Pavithra Mohan is a staff writer for Fast Company.

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