29 Trial Lawyer • Summer 2022 See NDA Coercion p 30 to an employer’s ability to continue to keep discrimination, harassment and assault in the workplace in the dark. We must remember that without silencing victims through NDAs, companies work harder to end the harassment under pressure of publicity related to the sexual misconduct, harassment or discrimination. This is why companies want confidentiality. But SB 726 also recognizes that in some circumstances, an employee may want confidentiality— for example, to protect their own privacy related to sensitive details of a traumatic situation or to prevent others in their life from knowing about the amount of a financial settlement. It, therefore, permits employers to enter into an NDA with an employee if requested by the employee. Failures Unfortunately, as many plaintiff-side employment lawyers will tell you, the law simply hasn’t worked. Employers and their attorneys still routinely request and require confidentiality or NDA provisions as a condition of settlement.3 Perhaps the most egregious example arises in the context of boilerplate severance agreements handed to unrepresented workers like Mary. These agreements have used “workaround” language in the agreements themselves stating that the employee “requested” the NDA as consideration for the amount of the settlement, even when the employee did not. In my practice as a plaintiff’s employment attorney, I have had several unsophisticated workers seek legal advice regarding the terms of a severance agreement that included an NDA and language stating that the employee “requested” the NDA. These workers were mostly handed boilerplate severance agreements after reporting sexual harassment or discrimination on the job and engaged in no negotiations of their agreements. And none of these workers had been provided the required policy informing them of their legal right not to enter into an NDA or be coerced into entering an NDA. Yet these agreements all contained provisions that the employee “requested” the confidentiality provisions. It seemed to me these agreements were designed to take advantage of unsophisticated and unrepresented workers. This is the very power dynamic that instigated the passage of SB 726 in the first instance. The other situation where employers routinely have been requesting confidentiality is in settlement negotiations in mediations or in direct negotiations with an employee’s counsel. Some employerside attorneys have attempted to engage in a workaround of the provision by making settlement contingent on a worker’s request for confidentiality. For example, a worker’s attorney will send a demand to the employer’s attorney that says “We will resolve this for ‘X’ dollars. Pursuant to ORS 659A.370, my client See Human Trafficking p 32
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