Nondisclosure agreements have a valid purpose, but they can also be misused, experts say

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Nondisclosure agreements have a valid purpose, but they can also be misused, experts say
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On live television, Senator Elizabeth Warren challenged Michael Bloomberg directly to release any number of women who might be restricted by an NDA.

Former New York Mayor Michael Bloomberg's refusal to release former employees of his media conglomerate from nondisclosure agreements is sparking a reexamination of these contracts that had already been energized by the launch of the #MeToo movement.

"Unfortunately, we're seeing that these broadly drafted NDAs are being imposed during the course of employment with the implication, 'You better not speak up,'" Andrea Johnson, senior counsel for state policy at the National Women's Law Center, toldDemocratic presidential candidate former New York City mayor Mike Bloomberg speaks during the Democratic presidential primary debate at Paris Las Vegas on February 19, 2020 in Las Vegas, Nevada.

Estreicher believes that in one-off circumstances where an NDA is signed, there is"an exchange of consideration" between the accuser and the employer that protects its legitimacy. "It's a bargaining chip they can use in obtaining a settlement to have things go away more quickly," Johnson said."Right now employers hold all the cards. Survivors often feel they have little power to do anything but accept an NDA."

Johnson is advocating for reforming laws regulating NDAs so that the playing field can be equalized. She, like most lawyers, still believes that these agreements can serve a valid public policy interest when implemented fairly.

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