(The Center Square) – Lawmakers in Maine are weighing a proposal that would prohibit employers from requiring workers to sign a nondisclosure agreement as a condition of employment. The proposal wouldn't ban the use of the agreements but would severely restrict their use by public and private companies.
The bill's primary sponsor, Rep. Thom Harnett, D-Gardiner, told members of the Legislature's Labor and Housing Committee during a recent public hearing that no workers "should ever be placed in the position of waiving fundamental rights to speak out about workplace harassment and discrimination in order to obtain or continue their employment."
"Compulsory nondisclosure agreements are bad public policy and do nothing more than facilitate, promote, and indeed hide incidents of harassment and discrimination in the workplace," he said. "They also prevent survivors of harassment and discrimination from publicizing their accounts, which for many survivors can help provide closure for these horrific experiences."
Andrea Johnson, director of state policy, workplace justice and cross cutting initiatives at the National Women's Law Center, told the committee that NDA's are shielding powerful men from allegations of sexual abuse and assault.
"For too long, individuals have suffered workplace harassment in silence, with little or no accountability for harassers," she said. "As the case of Harvey Weinstein illustrated, employers’ use of nondisclosure agreements is long-standing and has played a disturbing role in silencing victims and allowing serial harassers to operate with impunity."
Disgraced Hollywood producer Harvey Weinstein was accused by multiple women of using confidentiality pacts to buy their silence, though he has claimed the encounters were consensual. He is serving a 23-year sentence in New York state after being convicted in February 2020 on charges of rape and sexual assault, and faces additional charges in California.
Before he stepped down at Fox News, Bill O’Reilly is reported to have paid $32 million to a network employee to settle a sexual harassment accusation, one of many such agreements the conservative commentator signed over the past decade.
But the push to regulate NDAs is opposed by Maine Chamber of Commerce and other business groups, which argue the agreements are a legitimate tool for resolving workplace disputes.
"Resolution of disputes is a good thing, and it is easier to resolve matters, often for everyone, if there is confidentiality," Peter Gore, the chamber's vice president, said. "Without resolution, the parties continue to be adverse, costs for both sides rise, and the company often cannot take corrective measures for fear of incriminating itself."
More than a dozen states restrict the use of confidentiality clauses in settlement agreements involving so-called “public hazards” or individuals who are considered dangerous, according to the National Conference of State Legislatures. Several others are considering similar limits.
In 2017, California enacted a law that prohibits confidentiality clauses in lawsuits involving felony sexual assault or child sexual abuse.
Some legal experts have argued that a total prohibition on nondisclosure and arbitration clauses raises constitutional issues and ultimately could end up hurting the accusers.
Michael Roland, director of the Maine Department of Labor's Bureau of Labor Standards, raised concerns about the proposal and noted that nondisclosure provisions are "not inherently contrary to public policy, and can serve legitimate purposes in particular cases."
"On balance we believe the public interest is better served by preserving the option of nondisclosure provisions rather than legislatively restricting the terms and conditions upon which parties can resolve employment disputes," he told committee members.