Joined by former Fox News hosts Gretchen Carlson and Julie Roginsky, who both filed sexual harassment lawsuits against Fox News and its chairman Roger Ailes, Connecticut Democrats announced they will push for a ban on nondisclosure and non-disparagement agreements in Connecticut that restrict employees’ ability to speak about harassment and abuse.
“My story may be public, but I am still silenced by an NDA,” Carlson said, who went on from Fox News to create Lift Our Voices with Roginsky, a nonprofit organization dedicated to ending the use of NDAs to cover up for “toxic workplace issues.”
“Silence in America is an epidemic,” Carlson said. “One-third of all Americans sign NDAs on the first day of work with most people having no idea that they’re giving up their voice for anything that subsequently happens to them on the job.”
Both Carlson and Roginsky said they cannot speak out about their negative experiences with Fox News or the harassment they faced because of NDAs, despite their stories being told throughout media and on film.
“Far too many people in our state and across the country who step forward and bravely tell their stories are met with this mechanism that silences them,” said Sen. Mae Flexer, D-Windham. “They’re forced, they’re coerced into using NDAs in an effort to mitigate the circumstances of that discrimination in the workplace and for far too long we haven’t been able to see the full breadth and depth of workplace discrimination because of these agreements.”
Nondisclosure and non-disparagement agreements restrict what former employees can talk about after they leave employment, but the agreements have been used to keep accusations of sexual harassment and assault, as well as any other potentially legally problematic issues, quiet.
Carlson said that NDAs are typically signed at the start of employment, often under the auspices of protecting company information from competitors, but that the agreements have expanded in scope to essentially mean signing away one’s rights. The agreements are also used in conjunction with lawsuit settlements to keep the plaintiffs from discussing their experiences with the public.
The push to eliminate NDAs during the 2024 session will come after several attempts that never passed the General Assembly, most recently in 2019 and 2022. In 2019, a bill eliminating NDAs in the workplace passed out of the Labor and Public Employees Committee but was never taken up in the General Assembly.
In 2022, a large domestic violence law included a provision eliminating NDAs, but the language was stripped out of the bill in an amendment at the urging of business associations, according to Flexer.
“There were interests that were very persuasive to many members of the General Assembly that wanted that provision taken out, so in negotiations trying ensure that legislation would pass the House and the Senate, we were advised it would not pass both chambers if the NDA provision was in there,” Flexer said, adding that such concerns were not expressed during the public hearing process before the Judiciary Committee.
“These were concerns that came out in silence, in darkness, part of the legislative process that frankly I’m not too proud of happens,” Flexer said.
In an emailed comment, Ashley Zane, senior public policy associate for the Connecticut Business and Industry Association (CBIA), said that NDAs are “a valuable tool for companies when employees have access to trade secrets, proprietary processes, client information, marketing strategies, and any other sensitive information.”
“Additionally, federal legislation passed in December 2022 which precludes employers from enforcing nondisclosure and non-disparagement clauses related to allegations of sexual assault and sexual harassment that are entered into at the pre-dispute phase,” Zane said, adding that CBIA looked forward to working with lawmakers “to align state and federal law.”
Carlson and Roginsky, however, said the federal legislation doesn’t go far enough, and Connecticut should emulate New Jersey, California and particularly Washington in crafting strong language eliminating nondisclosure and non-disparagement agreements.
The Washington law, passed in 2022, prohibits NDAs from being used in discrimination, retaliation, wage and hour violations or sexual assault, even if there is a settlement with the victim, but does not prohibit NDAs from being used to protect disclosure of settlement payments, trade secrets, proprietary information or “confidential information not involving illegal acts,” according to the statute.
However, nondisclosure and non-disparagement agreements are not limited to the private sector. The State of Connecticut also used nondisclosure and non-disparagement agreements in the course of employment and in leaving employment.
Connecticut state auditors in 2016, 2017 and 2018 highlighted non-disparagement agreements in conjunction with payouts to employees, particularly at the University of Connecticut, where numerous six-figure payouts were made to professors dismissed due to allegations of harassment and abuse.
A 2018 bill passed by the General Assembly requires any payment in excess of $50,000 made to a departing state employee to avoid litigation costs be part of a settlement agreement with the Attorney General or be approved by the governor. It also restricts state agency NDAs from prohibiting employees from making a complaint or giving information, according to the statute.
“It’s time for Connecticut to follow a few other leading states and eliminate the use of these agreements,” Flexer said. “I’m really hopeful in 2024 that Connecticut will join the growing list of states that are enacting bans on NDAs and allow these brave people to tell their story and make the change that we need to see in many workplaces.”
**This article was updated with comment from CBIA**
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