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What's involved in releasing someone from an NDA?

You may require your employees to sign nondisclosure agreements (NDAs) for a host of different reasons. Often, NDAs are used to protect confidential or proprietary information from being shared with anyone outside the company.

However, employees who reach settlements with their employers regarding sexual harassment, as well as discrimination and other offenses, have also been required to sign them in order to receive their money. The NDAs typically prevent either side from discussing the matter publicly. If they're required to handle these allegations through arbitration rather than by filing a lawsuit, an NDA may be the only way they can get any sense of justice.

In the #MeToo era, NDAs for this purpose have come under attack. Victims rights advocates argue that they are used to silence victims (primarily women), allow known predators to continue their behavior and prevent would-be victims from being warned about them. They've also become an issue in the 2020 presidential campaign.

Mike Bloomberg, after being confronted about his own use of NDAs in his business, Bloomberg LP, recently announced that he would release three women who signed them if they requested it. That's a reversal of his stand just two days before that the agreements must be kept confidential by both sides.

Is it as easy for a company to release an employee or former employee from an NDA related to sexual harassment as it appears to be in this case? (Bloomberg did it in a tweet.) Legal and ethics professionals say it isn't.

One attorney says companies rather than just individuals are often named as defendants in sexual harassment claims. Therefore, the company would need to make that decision, usually with the guidance of their attorneys and their board of directors.

Another says that NDAs in these situations can provide valuable protections to the victims. If they are looking for another job, they may feel that having it known that they accused a previous employer or colleague of sexual harassment could harm their chances of being hired.

Whatever the reason for an NDA, it is a legally binding agreement. If you're considering an employee or former employee's request to be released from theirs, it's essential to talk with your attorney.

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