Update on How NDAs Can Impact Employee Sex, Harrassment Claims

Employers include nondisclosure provisions in a variety of employment documents often linked to the commencement or termination of an employee's employment. For example, nondisclosure agreements can commonly be found in employment agreements where the employee agrees not to disclose a company's confidential or proprietary information. These agreements are extremely valuable to employers, such as those in the highly competitive entertainment industry, who entrust their trade secrets to employees and wish to keep such information secret to remain competitive.

In other instances, these provisions are contained in settlement agreements, where they are designed to restrict the parties from discussing settlement negotiations, the settlement amount or the underlying claims. Relatedly, settlement agreements will often include non-disparagement provisions, which prohibit either party from making statements that would injure the reputation of the other party, even if those statements are not otherwise defamatory. Importantly, nondisclosure agreements, even in the settlement context, do not require that the existence of the agreement itself be kept confidential.