Released from an NDA – a story of hope!


To those reading this who are living under an NDA - you know better than anyone else how your NDA is impacting your conscience, your wellbeing, and your relationships.

My NDA covered matters that were fairly inconsequential in the grand scheme of things, yet the simple fact of living under an NDA had an ongoing negative impact. It is important to acknowledge the impact your NDA is having on you, regardless of the substance of the NDA itself. You may feel like the negative impacts of your NDA are your fault because you agreed to sign it, but in all likelihood you were under duress when you signed it. You may even have been encouraged to sign it by well-meaning advisors.

In my case, I relied on free help from labor rights organizers who spent considerable time negotiating with my employer about unpaid overtime. When I objected to an NDA being part of the final agreement, the person who had spent the most time negotiating on my behalf was frustrated with me. I felt like I needed to respect the work they had done, their experience in similar cases, and their assurances that I would not be retaliated against again. As it turned out, that same person later agreed that signing the NDA was a mistake, because without the information in the NDA being public, it made it easier for the employer to engage in further retaliation. This is an example of a lesson we all need to learn about NDAs – when NDAs are used to hide abuses of power, those abuses are likely to continue.

I lived under an NDA for two years before deciding I had to breach it. Everyone’s situation is different and many people who live under an NDA cannot risk breaching. For those of us who can take the risk, breaching our NDAs helps to weaken the power of NDAs in general, and create greater safety for more people to breach. Over time, this could also reduce the use of NDAs, as more people realize they are difficult to enforce and that enforcement is likely to backfire. This is especially true in the case of NDAs which are intended to protect the image or reputation of a more powerful party. As Mark Fenster, a law professor at the University of Florida wrote in his paper “How Reputational Nondisclosure Agreements Fail (Or, In Praise of Breach)”:

Reputational NDAs purport to resolve a dispute fraught with hurt, emotion, and trauma through a one-shot financial transaction; and reputation is ethereal, susceptible to the vicissitudes of public opinion, and shaped by fact and rumor alike. Reputational NDAs’ vulnerability to breach constitutes an alternative means to hold their abusive use in check…. Breach appears to be the best means not only to help victims but to discourage the use of Reputational NDAs to silence victims, as well as to force attorneys and their clients to reconsider how they use contract law to protect secrets.”

My NDA was not a reputational NDA that covered up anything scandalous that could threaten the existence of the Quaker school where I worked. However, the fact that a Quaker school would use an NDA as a condition of receiving back wages was itself a reputational risk, given the public image of Quakers as fair, honest, and truthful – an image the school relies on to be seen as a safe and trustworthy place for parents to send their children. The use of an NDA in my case raised the question of whether NDAs would be used in other contexts by the same school, and what exactly their NDA policy was. This is one of the reasons I decided to breach my NDA, to keep the pressure on for the development of a policy that protects the safety of the children and employees from the misuse of NDAs.

If you are thinking about breaching your NDA, I encourage you to consider not just how it will help you, but also how it could help others in similar situations, and how it could prevent future misuses of NDAs. If your NDA has a reputational component, you may have more power to protect yourself than you think. You should of course be careful and seek all the advice you can get. If you cannot breach, consider how you can raise the issue of the misuse of NDAs more generally. Whatever you do, I hope you find a way to overcome any shame or self-blame you may feel, and allow to grow in its place a sense of empowerment and clarity that the use of NDAs to conceal mistakes or abuses by people in power is wrong and must be stopped.

In solidarity and hope!