“Those who work in restaurants and hotels, farm workers, domestic workers – for them, every dollar makes a big difference, and therefore the threat of losing money they may have received or be prosecuted as a result of a confidentiality agreement, this threat will keep them silent,” Lapidus said. “That`s where this money is important, and they`ve probably already spent it when they might be thinking about speaking out.” Massachusetts courts see restrictive alliances in a negative light because they tend to overburden a former worker`s employment opportunities. Judges will only apply a confidentiality agreement in accordance with the National Trade Secrets Act. Each situation is different, but some of the factors that could lead a court to consider that a confidentiality agreement is not applicable are: while Weinstein`s alleged victims have come forward more and more, Lenora Lapidus, director of the Women`s Rights Project at the ACLU, has acknowledged that other vulnerable women who enter into similar agreements may not feel as safe. Weinstein used NDAs with several women who accused him of misconduct and made their claims confidential. In a statement to FRONTLINE, Weinstein denied the rape charge. He also said: “Over a 30-year period, there have actually been fewer than 10 comparisons of harassment claims… None of these agreements prevented a person from going to the police if they wished. Even damage can be difficult to recover under an NOA, as the monetary value of the harm caused by disclosure is not easily identifiable. NDAs often have a “liquidated damages” clause that outlines the monetary consequences of disclosure. However, such clauses are not applicable unless you are able to prove that the amounts shown are based on actual expected damages, and not just on a penalty to punish the wrongdoer.
Recent media and parliamentary controls have focused on the usefulness and applicability of confidentiality agreements (NDAs). Recently, a parliamentary inquiry, triggered by the Harvey Weinsten scandal and the global #MeToo movement, revealed that British employers were using ANA or confidentiality clauses in transaction agreements to silence victims of sexual harassment. The report, published by the Parliamentary Committee on Women and Equality (WEC), criticised companies, government and regulators for failing to adequately combat sexual harassment in the workplace. In deciding whether an injunction should be issued for violation of an NDA, the Tribunal implemented the political considerations in favour of the victim and those in favour of the aggrieved party. If there is an NOA between an employer and its former employee, the inevitable disclosure doctrine can be used to obtain an injunction that prevents the former employee from working for the employer`s competitor. According to the doctrine, the former employee may be called by work for the competitor if the employer can prove that the new employment of the former employee will inevitably allow him to rely on or disclose the employer`s trade secrets or confidential information.