Gatlin Voelker

The plethora of discussions flooding the internet on non-disclosure agreements (NDA’S) in sexual harassment/sexual assault cases have led to some false assumptions. Let’s clear up some of them.  

First, what is an NDA?

  In some jobs, employment is contingent on signing an NDA up front, which prohibits an employee from publicly disparaging their employer. The concept of this type of NDA is problematic, mostly because it is unfair for the employer to make such an NDA a condition of employment. The employee does not freely agree to this NDA, and is usually not represented by counsel.   This article addresses the other type of NDA’s, the ones our firm most often comes across in the settlement of a discrimination case. Although it is generally understood that this type of NDA protects the employer from disparagement and from public knowledge of claims against them, NDA’s cannot prevent an employee from bringing claims of illegal conduct to certain government agencies, including the Equal Employment Opportunity Commission.   Not all NDA’s are alike, and the complexities range from a simple agreement that the victim not disclose the amount of a settlement, to a more complex mutual agreement that various involved parties not discuss any aspect of the facts underlying the victim’s claim. What is less understood about the NDA is that it often plays a very important role in protecting victims of harassment and their families, particularly where it helps them move on in their career, sparing them the embarrassment of disclosing the very private details of their harassment or assault.  It lets them accept a private settlement in an amount best for them, while allowing both parties to move forward without attacking each other for past behavior.   Our firm’s role is to always protect our client’s interests, and if they seek the protections of such an agreement, then we help compose the language of an NDA that works best for them.  

Breaking an NDA

  Given the complexities of the NDA’s protections, the recent posturing by various politicians that it would be “easy” for a company owner to “release” a victim from her NDA is simply not true. Also misguided are the various state legislators who have called for a total ban on NDA’s in sexual harassment cases.   First and foremost, the victim usually doesn’t want the release of an NDA that references any facts of their very private and usually embarrassing story of assault. Even if the NDA itself does not contain such details, the language it does contain would certainly raise a lot of personal questions about the details.   Moreover, putting a victim on the spot to publicly release an NDA is more than problematic to the victim for a myriad of other reasons. A victim may not want to share even the basic fact that they asserted a claim, or that they made a settlement with the company.  Certainly, it is their right to keep those facts private, not only from a new employer, but also from co-workers, friends, and sometimes even from their spouse and children. It is generally not something they would want the media, social media, and general public to learn. Significantly, at the time they entered the NDA, they know they made the very difficult choice of a confidential settlement rather than a public outing of the company’s illegal behavior. Having to be shamed for that difficult choice years later is not something they usually seek.   Lastly, even in the unusual circumstance where a victim does want to be released from an NDA, such “release” by the company can also be a challenging concept. Since the company’s Board, its Shareholders, and its Executives are all changeable over a term of several years, it may be impossible for that organization to obtain the permission of all the parties involved.   No one can really anticipate all the issues that may arise under such circumstances of the “release” of a victim from his or her NDA. It’s a bargain that was struck under the existing facts of the time, and a later public disclosure can make those facts difficult to explain or justify.  If a party willingly enters an NDA under circumstances of settlement, and is represented by competent counsel, it is difficult to justify “releasing” it years later.

People often assume that only those in the lower or middle rungs of a business or organization suffer discrimination, harassment and unfair treatment. However, even executives and people in jobs that require considerable education and skills can find themselves the victims of unfair and even illegal employment practices. Sometimes, no matter how accomplished or well-performing an employee is, all that some others can see is their gender, race, religion, nationality or other characteristics. That can make them the target of actions that can compromise their ability to do their job and limit their career and salary opportunities.

The former CFO was terminated after filing a salary complaint

Here in Kentucky, we’ve just seen a former University of Kentucky (UK) official awarded $1.75 million for wrongful termination. The man had been the chief financial officer (CFO) of UK HealthCare and Senior VP for Health Affairs. The former CFO, who is from Guatemala, worked for the university for eight years. During that time, he received numerous promotions. Eventually, he was earning nearly $480,000 a year. However, he said that his pay was lower than appropriate for his position — and lower than U.S.-born officials at the university. When he filed a complaint about his salary, he was terminated.

University reportedly offered him a $50,000 settlement

When he took legal action, his attorney says that UK offered to settle the case for just $50,000. The man, who now is at the University of Massachusetts, took his case to court and prevailed this month. It took less than an hour of deliberation after a three-day trial for a jury to decide to award him $1.75 million. A UK spokesperson responded by saying, “We respectfully disagree with the decision reached yesterday, but will need time to further review before making any substantive comment.” It can be easy to buy into excuses from an employer for why you are not being paid fairly. It can also be easy to be persuaded that you’re being paranoid for believing that the unfair treatment you’re receiving is because of who you are. That’s why if you believe that you’ve been wronged by an employer, it’s wise to seek legal guidance to determine whether you have a case.

On June 27, 2019, the Kentucky Pregnant Workers Act (“the Act”) took effect for the purpose of protecting all pregnant workers and ensuring they have equal access to safe working conditions. The Act, which amended the Kentucky Civil Rights Act, protects employees by extending existing protections against retaliation and employment discrimination to cover discrimination based on an employee’s pregnancy, childbirth, and other related medical conditions. Other related medical conditions include, but are not limited to, lactation or the need to express breast milk for a nursing child. What Are Reasonable Accommodations for Pregnancy? The most significant part of the Act is that it requires employers to provide reasonable accommodations to employees who are limited due to pregnancy, childbirth, and related medical conditions. An employer must provide these accommodations unless it would impose an undue hardship on the employer. The Act mandates this requirement on employers with 15 or more employees in the State of Kentucky, in each of 20 or more calendar weeks in the current or preceding calendar year.[1] The Act provided examples of what reasonable accommodations may include, such as: more frequent or longer breaks; time off to recover from childbirth; acquisition or modification of equipment; appropriate seating; temporary transfer to a less strenuous or less hazardous position; job restructuring; light duty; modified work schedule; and private space, other than a restroom, for expressing breast milk. However, there are exceptions to this rule for employers. The first exception to the Act is that it does not cover employers with fewer than 15 employees. Therefore, only employers with 15 or more employees are required to provide accommodations under the Act. Exceptions to Reasonable Accommodations for Pregnancy Additionally, there is a second exception for employers if they can prove that offering an accommodation imposes an “undue hardship” on the business. Factors that Courts consider when addressing whether an undue hardship exists include the duration of the requested accommodation and whether the employer has a policy or has provided similar accommodations to other employees. If the employer has provided a similar accommodation or if they have a policy stating that they do provide such accommodation, then a rebuttable presumption that the accommodation is reasonable and not unduly burdensome is created. In addition to the mandate to provide reasonable accommodations unless it creates an undue hardship, the statute requires employers to engage their employees in a timely, good faith, and interactive process to determine the best accommodation for the pregnant or lactating employee. Lastly, the Act bars employers from forcing an employee to take leave time if another reasonable accommodation can be made which allows the employee to continue to work. The mandate to provide reasonable accommodations is just one aspect of the Act. Employers must post a notice of the new law and provide written notice of an employee’s rights under the Act. These rights include all employee’s rights to be free from discrimination based on pregnancy, childbirth, or other related medical conditions and their right to be reasonably accommodated for such limitations. If you have more specific questions or concerns, contact an attorney for further advice on your potential claim. Our attorneys are always available to hear your story and answer any other questions you may have regarding what we know to be this very difficult time. Call our office at 859-781-9100 to speak with an attorney or to schedule an appointment. [1] Although the reasonable accommodation requirement applies to employers with a minimum of 15 employees, the Act did not change the definition of “employer” under the Kentucky Civil Rights Act. Therefore, employers with at least 8 employees must still abide by the Act’s anti-discrimination and retaliation provisions.