There are many companies with closely guarded secrets. A popular fried chicken fast-food chain and its secret recipe for 11 herbs and spices come to mind. In those scenarios, companies are well within their rights to ask employees to sign a non-disclosure agreement (NDA) to protect their secrets.
However, a non-disclosure agreement will not stop you from filing a workplace discrimination claim.
Filing that claim will involve making serious allegations that need to be backed up with substantial evidence. That makes these claims inherently complex, which is why you need the support of an experienced Cherry Hill workplace discrimination lawyer.
Speaking with the attorney will help you understand all your options and the possible challenges you may face when moving forward.
The Legal Intersection of NDAs and Discrimination Claims
A non-disclosure agreement is a legal document with plenty of proverbial “fine print.” If you weren’t able to have a lawyer review the NDA before you signed it, you will definitely need one to perform a deep dive when filing a discrimination claim.
These are some of the broad legal concepts to factor into your decision to file a claim:
Invalidity in Misconduct Claims
If an employer asserts that your signed NDA prevents you from discussing sexual harassment, discrimination, or retaliation, it could be considered void or unenforceable.
Whistleblower Protections
If you are reporting any type of illegal activity to government agencies, you would not be retaliated against regardless of any NDA.
State and Federal Legislation
There have been numerous laws passed by states that prohibit companies from being shielded by mandatory NDAs in settlement agreements for discrimination and harassment.
Permissible Use
NDAs do remain valid for protecting legitimate trade secrets and proprietary information. They just can’t be used to cover illegal workplace behavior.
Non-Disparagement Limits
An NDA might have a clause that prevents employees from speaking negatively about an employer. However, that can’t override your statutory rights to report discrimination.
Federal Protections Against Restrictive Confidentiality Clauses
There are many federal protections in place that provide protection against restrictive confidentiality clauses that might inhibit workers from reporting illegal activity or discrimination. These statutes can serve as the legal foundation to help you move forward with your claim.
These are some of the federal protections that your attorney could apply in your case:
National Labor Relations Act (NLRA): The foundation of the NLRA is to “provide employees at private-sector workplaces the fundamental right to seek better working conditions and designation of representation without fear of retaliation.” That extends to protecting employees’ ability to discuss working conditions and cooperate with investigations.
Speak Out Act: This is a newer law signed in 2022 that prohibits the enforcement of NDAs where instances of sexual harassment or sexual assault are alleged.
SEC Whistleblower Protection (Rule 21F-17): Prohibits agreements that restrict employees from reporting potential securities law violations to regulators. It also forbids companies from having employees seek prior consent to report.
Federal Acquisition Regulation (FAR): This regulation prohibits federal contractors from requiring employees to sign NDAs that would restrict them from reporting waste, fraud, or abuse to government authorities.
When a Non-Disclosure Agreement Is Deemed Unenforceable
A company that has an employee who has signed an NDA thinks they are completely protected from any adverse actions by an employee. That would be a misguided interpretation of the agreement.
Your attorney can argue that an NDA may be unenforceable for the following reasons:
- Overly broad or vague terms
- Public policy violations
- Information in the public domain
- Unreasonable duration
- Lack of consideration
- Whistleblower protection
- Restricting the right to work
When confronted with these issues, a company has no choice but to step back and allow the claims to move forward.
New Jersey and Pennsylvania Laws on Workplace Secrecy
Along with the federal regulations, each state provides its own set of employee protection for discrimination claims, whistleblower complaints, and wrongful termination.
These are the laws that can provide you with support if you’re filing a complaint:
New Jersey Workplace Secrecy Laws
Confidentiality in Agreements: NJ law (N.J.S.A. § 10:5-12.8(a)) renders the NDA provisions in employment contracts or settlements unenforceable only if it can be established that those provisions hide details of discrimination, retaliation, or harassment.
Social Media Privacy: Employers cannot require employees or applicants to disclose usernames or passwords for personal social media accounts.
Worker Freedom Act: Starting in 2025, this law prohibits employers from forcing an employee to attend meetings that express opinions on labor unionization, political, or religious matters. It also states that employees can’t be subjected to retaliation for refusing to attend what are sometimes referred to as “captive audience” meetings.
Pennsylvania Workplace Secrecy Laws
Recording Conversations (Two-Party Consent): Pennsylvania enacted the Wiretapping and Electronic Surveillance Control Act, which established “two-party consent.” That makes it illegal to record in-person or electronic communications without the consent of all parties involved.
Confidentiality Agreements: Pennsylvania courts will enforce restrictive NDAs if they are designed to protect legitimate employer interests, a.k.a. company secrets. However, the NDAs must be limited in time and geography. In other words, it can’t go on forever and cover the entire world.
How Legal Representation Protects Your Rights and Reputation
Challenging a non-disclosure agreement while pursuing a workplace discrimination claim is not without its challenges. This is a situation where an experienced employment attorney will prove to be a valuable advocate.
The attorneys at Folkman Law have helped many clients move forward with discrimination and wrongful termination claims against their employers.
Our attorneys are fully prepared to take on the common tactic of a company using a signed NDA to skirt the law. If we step in to help with your claim, we can ensure that all communications with your employer, including internal HR documents, will be preserved and used in support of your assertions.
When companies are in the wrong, we want to hold them accountable while preventing retaliation or reputational harm as your claim moves forward.
The employment law team at Folkman Law understands the complexities of NDAs and workplace discrimination claims and can guide you through each step of the claim process with compassionate support and fierce advocacy.
If you are unsure whether a non-disclosure agreement limits your ability to take action, contact Folkman Law. We can help you understand your rights and determine the best path forward.
