Plus, lawyers tell Moneyish what you need to know before signing a nondisclosure agreement
#WhoBitBeyoncé may forever remain a mystery.
After divulging in a GQ profile posted this week that she’d seen an actress bite Beyoncé in the face at a Los Angeles party in December, comedian Tiffany Haddish revealed this week that an NDA precluded her from identifying the anonymous biter.
“NDAs are real, so I’m not saying s–t about nothing,” Haddish said in an Instagram Live video. (Beyoncé, for what it’s worth, raps on her new track “Top Off” with DJ Khaled, husband Jay-Z and Future: “If they’re tryna party with the queen / They gon’ have to sign a non-disclosure.”)
Before Haddish disclosed her inability to name the biter, she joked that “it was Stormy Daniels,” referencing the stage name of adult-film star Stephanie Clifford, who says she had a one-night stand with President Trump. “Pay attention to what’s really going on — that’s not news,” she added. “Who bit Beyoncé is not news.”
Clifford defied a nondisclosure agreement of her own Sunday to detail her alleged dalliance with Trump on CBS’s “60 Minutes” — claiming she’d had an affair with the reality TV star in 2006 and received a personal threat to “leave Trump alone” after speaking to InTouch magazine in 2011.
Clifford previously argued her so-called $130,000 “hush agreement” with Trump lawyer Michael Cohen, signed just days before the 2016 presidential election, was invalid since POTUS himself never signed it. “(D)espite having detailed knowledge of the Hush Agreement and its terms … Mr. Trump purposely did not sign the agreement so he could later, if need be, publicly disavow any knowledge of that Hush Agreement and Ms. Clifford,” her attorney, Michael Avenatti, wrote in a lawsuit filed earlier this month.
Also read: What happens if you break an NDA?
But NDAs aren’t just for porn stars and future presidents: They’re a tool commonly used by corporate employers to keep trade secrets under wraps and settlement terms confidential. People may be asked to sign them as a condition of employment, as part of a severance package, as contained within a settlement agreement or in a purely personal context, said employment attorney Paula Brantner, a senior adviser to the nonprofit Workplace Fairness. (Harvey Weinstein, accused of sexual harassment and assault, allegedly used NDAs and confidential settlements to prevent employees from speaking out.) Here’s what to look out for if you’re ever asked to sign one:
Be wary of an overbroad agreement. If an NDA seems less like an effort to protect confidential company intel, and more “geared to try to muzzle the employee” from speaking out about improprieties, that should raise a red flag, employment attorney Debra Katz told Moneyish. “If an employer wants you to agree to something that’s so broad to exact a half-a-million-dollar penalty if you say something about the employer’s friend,” Katz said, “you’ve got to wonder what the employer’s friend is doing — and do I want to work for someone like this?”
Check the liquidated damages provision. Liquidated damages specify a cash amount that the employee must pay per breach of an NDA — and no reasonable lawyer, Katz said, should counsel their client to agree to such a provision that’s grossly disproportionate to the settlement amount. “We have seen cases where someone earns $30, $40,000 a year, and the employer’s NDA has a liquidated damages clause of half a million dollars per breach,” she said. “That clearly would be financially ruinous for any individual, so it creates this dynamic that employees are terrified to come forward about even the most egregious behaviors because they’re afraid of being sued.”
Time limits matter. “Agreements that go on in perpetuity, so the employee can leave and for the rest of his or her life be precluded from ever saying anything negative about that employer” are another red flag, Katz said. “It’s just overreaching.”
Look out for a forced-arbitration clause, or a clause dictating disputes be resolved by private and confidential arbitration rather than being aired publicly in a court of law. “Instead of bringing your case in court where a trial would be in a courtroom open to the public,” Brantner said, “this would be, in essence, a secret tribunal before an arbitrator who isn’t required to disclose their ruling.” Employees are less likely to win in mandatory arbitration than they are in litigation, according to a 2014 Cornell University survey of attorneys.
Verbal agreements don’t count. “Don’t trust anything that’s not part of the written agreement, and if the written agreement deviates from what you’re being told, then you need to clarify that pretty quickly,” Brantner said.
Complaining to authorities is still fair game. An NDA that precludes workers from bringing illegal discrimination or harassment claims to the Securities and Exchange Commission or the Equal Employment Opportunities Commission would be unenforceable, Katz said. “The fact that you signed this doesn’t prevent you from going and reporting these issues to the appropriate law enforcement and other regulatory agencies,” she said.
When in doubt, Brantner said, “just talk to a lawyer.” “The clauses are going to be drafted by lawyers and HR professionals, and (people) are at a disadvantage if they don’t talk to someone with specific expertise in this telling them what the individual implications are,” she said. “There’s obviously some commonalities … but it’s also an individualized determination of how restrictive is this clause; what does it mean for their career.”
This article was originally published March 27, 2017, and updated with new information.
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