Katz, Marshall & Banks partner Alexis Ronickher gave testimony on October 4, 2018 to the Council of the District of Columbia on Bill 22-0907, the “Sexual Misconduct Sunshine Amendment Act of 2018.”
The bill would limit the scope of confidentiality agreements that can have a chilling effect on employees seeking to report sexual harassment and discrimination in the workplace. The bill would also necessitate that the Office of the Mayor and the Office of the Attorney General submit an annual report to the Council detailing payments and settlements made with public funds.
Ms. Ronickher spoke about the importance of distinguishing between confidentiality agreements that are “pre-dispute” and usually entered into as a condition of employment, and “post-dispute” agreements that are a part of a settlement or severance agreement. The latter serves an important purpose for both parties; ensuring privacy for sensitive information and increasing the parties’ ability to reach a settlement.
Pre-dispute agreements on the other hand are often too broad. They should be used to protect confidential intellectual property and trade secrets – not to completely silence employees. While the bill would be an improvement on the current law, Ms. Ronickher proposed a few suggestions that would go even further in addressing the unacceptable use of NDAs to silence employees from reporting sexual harassment.
Currently, only disclosures that are related to violations of DC Human Rights Act are addressed by the bill. Other state labor laws should be included to guarantee the safety and wellbeing of DC employees. Additionally, employees who sign pre-dispute NDAs should be informed that speaking out about unlawful activity is not a violation of any confidentiality agreement.
In terms of post-dispute confidentiality agreements, Ms. Ronickher agrees with not banning these types of NDAs, and any action on this front should be entirely survivor-centered, and yield to the survivor’s preferences.
Finally, there must be substantial civil penalties and the Mayor’s office must be authorized to enforce compliance.