Negotiate Key NDA Terms
Protect Your Interests
More than one-third of all workers are bound by NDAs, which also prevent them from speaking up about toxicity on the job.
Before signing a severance or settlement agreement, there is an opportunity to (re)/negotiate the terms of an NDA.
While NDAs are intended to protect company secrets, they can also limit your ability to speak out during disputes. Understand the potential benefits and risks, common pitfalls, and practical strategies for navigating their terms.
Each section of an NDA provides an opportunity for negotiation with potential implications for the final payout.
The silence of the oppressed is not consent, it is survival.
Breaking the Silence
Where to Start: Review Proposed Terms
- Consult Legal Advice BEFORE Signing Any Agreement
- Engage Council: Before signing a contract, severance package, or settlement, we strongly recommend you engage legal counsel to help you understand your rights and the full scope and impact of the contract terms
- Negotiation: Additionally, an attorney can help you negotiate more favorable terms
- Understand NDAs in Workplace Contracts
- Review against the potential benefits, pitfalls to avoid, and risks to mitigate
- Clarify Terms and Conditions
- Define Confidential Information: Ensure the NDA clearly defines what is considered confidential
- Duration and Exceptions: Confirm the duration of the confidentiality obligations and any exceptions for discussing the information
- Evaluate Disclosure Permissions
- Permitted Parties: Understand who you can legally discuss the information with, such as legal advisors, therapists, or immediate family.
Key NDA Terms to Negotiate in Severance and Settlement Agreements
You can concentrate on specific NDA terms to reduce limitations and restrictions while advocating for more favorable conditions. The following sections highlight key NDA clauses that should be evaluated and negotiated.
Define and Narrow the Scope of Confidentiality by focusing on specific information
- Exclude Personal Experience: Exclude your personal experiences, especially concerning harassment or misconduct, from the confidentiality obligations
- Example: Instead of a blanket confidentiality clause, specify that only trade secrets or specific financial data are covered
Limit the Duration of the NDA
- Exclude Personal Experience: Exclude your personal experiences, especially concerning harassment or misconduct, from the confidentiality obligations
- Example: Instead of a blanket confidentiality clause, specify that only trade secrets or specific financial data are covered
Define Exceptions
- Legal and Professional Counsel: Ensure the NDA permits disclosures to legal counsel, financial advisors, and mental health professionals
- Family Members: Allow discussions with close family members for emotional support
- Example: You may disclose information to your attorney, spouse, tax accountant, or therapist
Include a Mutual Non-Disparagement Clause to ensure mutual fairness
- Reciprocal Agreement: Propose a mutual non-disparagement clause where both parties agree not to make negative statements about each other
- Balanced Terms: Ensure the clause is balanced, protecting your interests as well as those of the employer
- Example: Both parties agree not to make any disparaging statements about each other to third parties
Preserve Your Legal Rights – Allow Reporting and Compliance
- Whistleblower Protections: Include provisions that allow you to report illegal activities or cooperate with government investigations
- Legal Requirements: Ensure the NDA does not prevent compliance with legal or regulatory obligations
- Example: Nothing in this NDA shall prevent you from reporting any illegal activities to authorities or complying with legal requirements
Specify Non-Disclosure of Settlement Terms Only – Focus on Settlement Details
- Settlement-Only Confidentiality: Restrict the NDA to the terms of the settlement itself rather than all experiences or information related to your employment
- Exclude Harassment Claims: Specifically, exclude discussions related to harassment or discrimination claims.
- Example: Confidentiality applies solely to the financial terms of this settlement
Include a Speak Out Provision – Protect Your Voice
- Speak Out Act Compliance: Ensure compliance with the Speak Out Act by including provisions that allow you to discuss incidents of sexual harassment or assault
- Explicit Rights: State explicitly that discussing such incidents is not restricted by the NDA
- Example: This NDA does not prevent you from discussing any experiences related to sexual harassment or assault
Propose Conditional Confidentiality – Tie Confidentiality to Specific Conditions
- Performance-Based: Propose that the confidentiality obligations hinge on specific actions by the employer, such as adhering to agreed-upon corrective measures within the company
- Breach Clauses: Include provisions that void the NDA if the employer breaches certain conditions of the settlement
- Example: Confidentiality obligations are contingent upon the employer fulfilling agreed-upon terms within 6 months
Negotiate Financial Considerations for Confidentiality
- Confidentiality Premium: If the employer insists on broad confidentiality, negotiate additional financial compensation or benefits in exchange for the broader restrictions
- Incentives: Tie confidentiality to incentives such as severance packages, bonuses, or extended benefits
- Example: Additional severance pay of 20% for maintaining confidentiality beyond standard terms
Renegotiating NDA terms and conditions in a settlement is about striking a balance between protecting your rights and meeting the employer’s need for confidentiality. By clearly defining the scope, limiting duration, allowing specific disclosures, and ensuring compliance with laws like the Speak Out Act, you can achieve a more favorable and fair agreement.
Share your experience and find recommendations in the Navigating Workplace Harassment and Discrimination Facebook Group.
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