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Don’t take enforcing your nondisclosure agreement overboard

Many shocking details emerged from the recent trial of famed movie producer Harvey Weinstein. One particularly eye opening detail revealed to the general public is how someone in a position of power like Weinstein often require employees to sign nondisclosure agreements (NDAs) in hopes of keeping workers quiet about any alleged indecency in the workplace. If you’re using an NDA for the same reason, then you could expose yourself to legal liability.

During Weinstein’s most recent trial for various sexual assaults, some accusers disclosed that they were forced to sign NDAs after they had begun questioning Weinstein about how they were being treated. Trial revealed that many of Weinstein’s female workers were asked to sign NDAs to try to keep them from talking about Weinstein’s undesired sexual advances and harassment. It is unlawful to use an NDA for this purpose.

Just as NDAs can’t be used to silence sexual abuse victims, there are many other instances in which such agreements are not enforceable.Anyone who signs an NDA may still be required to appear in court if they’re subpoenaed to do so. Furthermore, any employee subject to an NDA may also have to participate in a law enforcement investigation if asked to do so.

Virtually any employee that signs an NDA is still authorized to file a whistleblower claim. Employees bound by an NDA may also participate in any federal Equal Employment Opportunity Commission (EEOC) or Occupational Safety and Health Administration (OSHA) investigation.

While California employers are not required to read or interpret the NDA to your employee before asking them to sign it, employers should know that employees can’t be forced to sign NDAs under duress. Workers have a right to request additional time to either review the legally-binding document themselves or in consultation with their attorney.

Otherwise, if you and your company fails to comply with existing laws and try to infringe on your worker’s rights, the nondisclosure agreement can be invalidated. Additionally, the company may have to pay fines and other damages. An attorney who’s keen on minimizing time and expenses is who you’ll want representing you if an employee challenges the NDA that you had them sign.

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