I work with people considering breaking their NDA to tell a story. With the agreements under legal attack, more will be coming forward
For five years, I have worked as a media relations advisor and ghostwriter for people who break their signed nondisclosure agreements (NDAs) to tell their stories. These people have worked at coffee chains, wildlife parks, tech giants, real estate funds, and aerospace companies. The contracts all differ. Some individuals have signed settlement agreements with a lot of money at stake, or separation or severance contracts with a few months’ salary. Some simply signed confidentiality agreements upon starting employment.
Researchers estimate that between 33% and 57% of U.S. workers are constrained by an NDA or similar mechanism. Yet it is difficult to precisely determine how many employees are silenced by NDAs because NDAs are designed to conceal information. In fact, NDAs often provide that the mere existence of the agreement is itself a secret. Lawyers regularly encourage firms to use broad NDAs as a condition of employment—not only to protect trade secrets, but also to discourage employees from revealing bad employment experiences. NDA prevalence also varies by sectors.
People’s fears of legal action for breaking an NDA or sharing confidential information are not without merit. Employees have been sued for the breach of nondisclosure agreements, or for taking the risk to make private information public. And nondisclosure agreements exist for a reason, as not all information is worth publicizing and there are significant reasons to protect people’s privacy. Defamation claims can arise separately from breach of an NDA. It is up to each person to decide whether they want to be the one to let the light flood through, and many may not want to take that risk. Some people just want to move on.
Of course, no attorney who wants to remain a practicing lawyer can give advice that encourages someone to break a nondisclosure agreement that would technically require the person to pay some sort of monetary fine or put themselves in financial and professional jeopardy. After tweeting “f*** an NDA. Sue me” and revealing information about what she deemed a “toxic and sexist” culture at Kanye West’s Yeezy, internet personality YesJulz (Juliana Goddard) was sued for allegedly breaking her nondisclosure agreement.
NDA rules changing
It remains to be seen what the outcome will be or if she will be required to pay, but in general, it is always best to consult a lawyer, as they can inform you about the scope of the risks, as well as recent legislative or regulatory changes made to create more transparency and allow people to speak with less fear of retaliation. These include both federal and state laws that now allow for people to break NDAs in instances of sexual assault, sexual harassment, or discrimination. And with the Securities and Exchange Commission applying increased scrutiny on nondisparagement clauses in contracts to ensure they do not deter valid whistleblower activity, as well as the Federal Trade Commission recently banning noncompete agreements—enabling more mobility for workers to move within the sector they have expertise in—rules are changing so that people can share their experiences more freely.
Behind the cautious lawyers and apocalyptic-sounding legal documents, breaking a nondisclosure agreement to share a story does not guarantee that you will be punished. In addition to the new rules that free people to share certain stories, one of the reasons that it may be unwise to sue someone for breaking a nondisclosure agreement is that this then creates a public record, which makes it all discoverable to anyone searching court records—including journalists. If someone is truly trying to hide something, filing a lawsuit about a person breaking an NDA just brings more scrutiny and awareness to the situation, potentially inviting more stories, information, or evidence. Because of this, even people who could technically enforce an NDA might never consider taking action, desiring to prevent future public relations disasters or keep a Pandora’s box of stories closed. In some cases, they know that there may be more stories out there to add to the consensus-building reality.
Game theory aside, the reality is that today, some people are accepting the risk of being on the hook for legal fees because speaking openly is far more important to them psychologically, in that it frees them from the experience and allows them to share information and perspectives on their own terms. It’s a way of taking back one’s agency.
This trend started years ago. In 2021, I worked with a woman named Alexandra Abrams, who brought forward information about a toxic and misogynistic work environment at Jeff Bezos’s space company Blue Origin—and in doing so, broke a nondisclosure agreement she signed to receive a severance payment. After going public, she received a letter from the company demanding that she pay back her nearly $50,000 severance payment—but then the company never followed up on that threat, presumably because it was dealing with a media firestorm and understood the terrible optics of bringing a lawsuit against a woman who was defending her colleagues and pushing for a better culture.
Telling their employment stories
More recently, Ashley Kostial—a former employee at SAP—decided to break her nondisclosure agreements with both an insurance company and her former tech-giant employer in order to share information about the refusal to cover her after she was allegedly raped at her workplace, and to help other people who might be going through something similar. She went forward despite her lawyer sending her a stern reminder of her confidentiality agreement after the outlet that published her account went to SAP for comment. She did so in part because, as she said, there was nothing worse than what she had already been through.
And of course, with the rise of work and relationship stories on TikTok going viral—leading to people making money through the creator economy—more and more individuals with a penchant for expressiveness will feel emboldened to share the raw and unfettered versions of their stories. It also is possible to come forward anonymously to journalists, or on social media platforms.
Long before something becomes knowledge in the broader public or in a formalized manner, whisper networks thrive—sometimes diminished to frivolous “gossip,” but sometimes with invaluable information about the world and its power players. For this reason, paying people—oftentimes women—who get too close and know too much to keep quiet has been a practice for centuries. But now, with all the democratized channels for sharing our experiences with one another—and a culture that pushes us to consume media like this—people are liberating themselves by telling their stories.
In a country that promotes free expression as the core of its identity, it is astounding that many of our experiences are technically not allowed to be uttered, sometimes not even personal observations or experiences said to any person we know, depending on different contracts. For many, nondisclosure agreements have permeated every part of life that requires you to exist and survive as a human being—and to not sign them might mean being unable to get a job, leave a job, or enter or leave a relationship. So, people will sign them. But as new rules reduce the risk of sharing information, we’ll also see more individuals not so afraid of breaking them.
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