Schroeder Comments on Future of Nondisclosure Agreements in Wake of Weinstein Scandal

Partner Donald Schroeder is quoted in a Law360 article, “Weinstein Scandal Not Enough To Kill Confidentiality Pacts,” about the potential impact of the Harvey Weinstein sexual misconduct scandal on the use of nondisclosure provisions in employment contracts.

Schroeder noted that nondisclosure provisions in employment agreements don’t restrict an employee’s ability to report anything he or she saw or experienced in the workplace and don’t take away an employer’s duty to investigate such claims. He also said that employees are free to breach such agreements, with the employer’s only real recourse being to pursue liquidated damages.

“Whatever an employment agreement says, it won’t impact an individual’s ability to report sexual harassment either through human resources or through [a company’s] code of conduct,” he said.

While he acknowledged that public pressure could subject such agreements to closer scrutiny, Schroeder said attention is more likely to be focused on “making sure companies have an open-door policy” for reporting harassment and having various avenues for employees to report misconduct.