Should Employment Attorneys Feel Guilt for Pushing Nondisclosure Agreements in Settlements?

Why It Matters

NDAs can silence victims and skew power in settlement negotiations, influencing both legal practice and broader workplace accountability.

Key Takeaways

• NDAs often trade story for settlement money, limiting disclosure.
• Clients overvalue media exposure, risking larger payouts in future.
• Violating NDAs can forfeit settlement, as seen in Twitter case.
• Attorneys must balance ethical guidance with clients' desire for publicity.
• Courts treat NDA compensation as non-recoverable damages in negotiations.

Summary

The conversation centers on the ethical tension employment attorneys face when steering victims of workplace harassment toward nondisclosure agreements (NDAs) in exchange for monetary settlements. The discussion arose after a documentary premiere at SXSW that highlights how NDAs silence survivors, prompting attorneys to confront the moral weight of offering “money or story” choices. Key insights reveal that clients frequently overestimate the market value of their narratives, believing media deals will outweigh settlement offers. Attorneys explain that NDAs are not absolute gag orders—victims can discuss experiences if they avoid identifying details—but the agreements often serve to push clients toward moving on rather than reliving trauma. Real‑world examples include a Twitter post that breached an NDA, costing the plaintiff $700,000, and a $20,000 book‑deal advance that paled against a potential six‑figure settlement. Notable quotes underscore the dilemma: “You’re the bad guy when you ask someone to choose money over their story,” and the observation that “most women have similar stories, so sensationalism devalues the harm.” The speakers also note that while employers may pay a premium for NDAs, such compensation is not a recoverable damage category in court. The implications are clear: attorneys must navigate a fine line between protecting client interests and preserving the right to speak. Overreliance on NDAs can perpetuate silence, affect public awareness of systemic harassment, and shape future settlement negotiations, prompting a reevaluation of ethical standards in employment law.

Original Description

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