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What to know when putting together a fair NDA policy

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By Ellen Ormesher, Senior Reporter

July 14, 2022 | 7 min read

The Drum speaks to agency bosses, support organizations and legal experts about how fairer NDA policies can help mitigate their misuse in sexual harassment cases.

NDA policies

NDA policies: what you should know

In April of this year, a coalition of advertising industry support organizations and agencies came together to launch the ‘Made NDAs Fair’ campaign, highlighting how confidentiality agreements utilized by businesses have historically been misused in order to silence victims of workplace harassment – including sexual harassment and abuse – and prevent them from speaking out about their experiences.

In July 2019, the UK government committed to legislate in this area “when parliamentary time allows“. However, with no changes in the law on the immediate horizon, the coalition concluded that the advertising industry must move faster to eradicate sexual abuse and subsequent misuse of NDAs and confidentiality clauses and set an industry “best practice” standard.

If businesses fail, it could start impacting the bottom line: last week, for example, global intermediary network Trinity P3 said that all Australian agencies must declare harassment policies and use of gag orders in new business RFPs, paving the way for similar rules to be rolled out globally.

So where can firms begin to improve conditions for workers who have been silenced?

Advertising has a harassment problem

Last year, Zoe Scaman published Mad Men, Furious Women, a blog post that brought to light countless stories of sexual and other harassment that many – particularly women and marginalized groups – have regrettably experienced while working within the advertising industry.

Subsequently, the ‘Make NDAs Fair’ campaign and ad industry coalition has been formed with the aim of ensuring fair NDAs be included as a recommended commitment in the Code of Conduct of the industry’s #TimeTo initiative to eradicate sexual harassment. How, though, has an industry that prides itself on shaping culture for the better stayed so shamefully in the past when it comes to the treatment of women and marginalized people within its walls?

Shilpen Savani is a legal expert and one of the campaign’s founding members. He posits that while incidents of workplace harassment – particularly towards women and other marginalized groups – are by no means exclusive to the advertising industry, there can be a “misapprehension that these are not serious workplaces or not as regimented” and this can result in a perception that behavior is not as restricted.

Scaman’s article draws on her own experiences as well as a wide array of anonymous sources to lay the reality of sexual harassment in adland bare. She says: “Every single woman I’ve spoken to has a story from their time in the industry.” Furthermore, systemic misogyny and stigma against women who speak up about their experiences mean that many who do report abuse “will never work again”.

NDAs can further exacerbate this issue when they are used to prevent victims of workplace harassment and abuse from speaking openly about their experiences, even to their closest loved ones.

“It’s time there was reform in this area,” says Ali Hanan, chief executive of Creative Equals, a partner consultancy to the ‘Make NDAs Fair’ campaign.

“Going forwards, we have to make sure sexual predators in the industry are not protected. This has happened in the past where sexual abuse victims have been gagged, while predators have gone on to progress unhindered and abuse multiple times.”

How does a fairer NDA policy help?

The ‘Make NDAs Fair’ campaign highlights that not all NDAs are malicious. Many are perfectly reasonable and fair use to protect confidential business information – Savani goes as far as to call them a “necessary evil” in business. “In employment contracts, confidentiality clauses are routinely used to protect confidential information and there’s nothing wrong with this if employees understand what is being asked of them,” he says.

“But when there is a dispute and employers offer outgoing employees a settlement agreement, this frequently introduces strict secrecy clauses with the threat that even a minor breach will jeopardize the employee’s whole compensation. This is unfair because the compensation paid is mainly for past matters and should not be tied to secrecy… It becomes even worse if such clauses end up shielding workplace bullies and deter victims of sexual harassment or other misconduct from reporting this.”

Additionally, employers routinely seek to protect the reputations of not only the employer but also all associated companies, their entire workforces and sometimes even their shareholders within a settlement agreement. In the worst cases, this can have the effect of shielding the alleged harasser and leaving them free to continue their actions unchecked.

Therefore, a fair NDA policy would mean that employees would have absolute freedom to report any workplace abuse and sexual harassment, and Savani also emphasizes that these policies would not only mitigate instances of NDA misuse internally within agencies but in any client relationships too. “Because an important aspect of a fairer NDA policy is to have a zero-tolerance approach to harassment, there are restrictions and safeguards in place to ensure that employees are always free to go to HR to report misconduct.”

What else should the policy include?

The ‘Make NDAs Fair’ campaign outlines the following as the essential commitments required to ensure effective policy.

  • Zero tolerance of obstructions to reporting workplace harassment and bullying.

  • Compensation payments relating to workplace harassment, bullying or discrimination claims should be completely independent of secrecy obligations in settlement agreements.

  • If non-disparagement clauses are used in settlement agreements relating to workplace harassment, bullying or discrimination claims, their scope should be strictly limited to the employer. Where individuals are included this should be with the consent of the outgoing worker and limited to relevant individuals only.

  • Every worker should be offered independent legal advice, at the employer’s expense, before signing an NDA or accepting a confidentiality/secrecy clause. A copy of any resulting agreement should always be available to the worker on request.

Speaking on a panel at Advertising Week earlier this year, Lorraine Jennings-Creed, director of culture, change and wellbeing services at advertising and media industry support group Nabs, explained that there are things workers can do to apply pressure on employers to join the movement for fairer NDA policies, as well as create a culture of condemnation for harassment and sexual abuse in the workplace.

“We are trying to reach the changemakers and ask them to convey the message that we are not waiting for lawmakers, and while this is not being forced on you, you need to recognize that you owe these protections to your business,” she said.

“If these cases are not handled sensitively, there is far too much scope for abuse and you are suffocating people who feel like they can never speak out against something traumatic that happened to them. They live with that for the rest of their lives.”

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