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‘Evil thrives in silence’: Bill aims to nullify NDAs in cases of harassment and assault

‘The only way that sexual harassment and violence in the workplace happens is when we cannot talk about it,’ one Utah lawmaker said.

(Chris Samuels | The Salt Lake Tribune) Rep. Kera Birkeland, R-Morgan, is sponsoring a bill this session that would make nondisclosure agreements unenforceable in cases of workplace harassment or assault. The bill is likely headed to the Senate this week.

A bill moving quickly through the Utah Legislature would make any employee’s nondisclosure agreement or non-disparagement clause unenforceable in cases of sexual harassment or assault at work.

Titled “Employment Confidentiality Amendments,” Rep. Kera Birkeland’s HB55 would stop Utah businesses from asking employees to sign an NDA that might prevent them from disclosing sexual assault or harassment. Any such agreement signed after the bill becomes law would hold no legal power.

“[NDAs] will probably continue to be signed for years in the future,” said Sen. Todd Weiler, R-Kaysville, who is set to represent the bill in the Senate. “This is basically making them unenforceable under Utah law.”

Speaking in support of the bill was Kimberly Bernhardt, a southern Utah resident who said confidentiality clauses strip victims of their power.

“As it stands now, victims and witnesses don’t have an option other than to be continuously controlled by the abuse of power that has been continuously executed under these clauses,” Bernhardt said.

Bernhardt said the bill would give victims the “option to use their voice should they choose.” It would also protect employees who witness abuse from signing or adhering to NDAs.

Federal law already restricts the legal power of NDAs in cases of sexual harassment and assault. The Speak Now Act, enacted in 2022, nullifies NDAs signed before abuse happens, in disclosures signed as a condition of employment. But it does not apply to NDAs signed as a result of abuse, or as part of a settlement agreement between an alleged abuser and their victim — which is when many NDAs become a problem, Weiler said.

“When an NDA is signed [in advance], nobody is expecting harassment to occur,” Weiler, a lawyer, told The Salt Lake Tribune.

Settlement agreements, meanwhile, are often expressly made to “brush [abuse] under the rug.”

“That’s why you’re paying money,” Weiler said. “We can’t undo harassment. The way we compensate for it is with money.”

The legislation, if it becomes law, would apply to NDAs signed at any time, including after an employee has left a company or entered into a settlement agreement. It would also protect employees from retaliation should they refuse to enter into a confidentiality agreement.

The bill, if enacted, would not be retroactive. Any confidentiality agreements signed before its enactment would still be enforceable.

“The only way that sexual harassment and violence in the workplace happens is when we cannot talk about it and point it out to stop it,” Birkeland told the House Judiciary Committee.

Birkeland said she would discuss the bill with The Tribune, but did not respond to an interview request ahead of publication.

Research has estimated that more than one in three U.S. workers is bound by some kind of NDA. And roughly one in three women experience sexual violence in their lifetime, according to the World Health Organization.

Advocates of HB55 say the current rules allow abusers to continue to operate in secrecy and obscure the scale of the problem. If 18 people are abused at work and have signed NDAs, Weiler said, but a 19th person speaks up about the abuse, it could look like that person is alone.

Weiler, in an interview, said such adherence to the NDA “really puts the victim at a disadvantage,” and then creates “a greater disadvantage” for the next victim.

“I’ve seen firsthand the devastation that NDAs cause in allowing evil to thrive in silence,” said Mike Borys, who told the House Judiciary Committee he did not plan on testifying for the bill but felt compelled to support it.

Borys and his wife, Celeste, sued Tim Ballard, the disgraced founder of the anti-child-trafficking nonprofit Operation Underground Railroad, last October, accusing Ballard of “violent sexual assaults” while Celeste was Ballard’s executive assistant. They also sued OUR and its board of directors for enabling the abuse and failing to intervene. Ballard has denied the allegations.

In December, OUR countersued the Boryses, accusing them of making defamatory statements that harmed the nonprofit — and for violating Celeste’s NDA with OUR.

A fiscal report stated the bill would not cost the state any money and would not financially impact businesses, though Weiler said protecting “high-producing” or powerful employees is often a financial decision. But settlements cost money, too, he said, and companies should be held accountable for their “bad actors.”

“It’s not OK to brush it under the rug, because it did happen,” Weiler said.

Shannon Sollitt is a Report for America corps member covering business accountability and sustainability for The Salt Lake Tribune. Your donation to match our RFA grant helps keep her writing stories like this one; please consider making a tax-deductible gift of any amount today by clicking here.