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Breaking Your Silence: Can You Get Out of an NDA?

Nondisclosure agreements (NDAs) have been tainted. From Harvey Weinstein’s settlements with multiple women on sexual harassment to President Donald Trump’s unusual dealings with many people, NDAs have become weaponized documents. They have gained notoriety for muzzling and bullying, stripping people of their rights.

When you’ve found yourself in a similar situation, does that mean you have no legal recourse to address a matter that’s bound by the nondisclosure agreement?

What’s in an NDA?

NDAs cover secrets. It could be an employee’s contract with a company working on proprietary products or services. It could be a person’s contract with a professional representing a high-profile client. It could be a confidentiality agreement between two companies about a merger.

Whatever the NDA covers, know that it doesn’t just contain gagging clauses that keep you from blowing the whistle on inappropriate behavior. And it is common practice in particular businesses that handle sensitive information.

Before you sign one, read it and make sure it contains the following:

  • Definition of confidential information
  • The period it covers
  • The jurisdiction and enforcement of remedies
  • Parties that benefit

Better yet, get an attorney practicing civil law to go over it. Whether the legal document’s a unilateral or mutual agreement, a lawyer’s expertise is always a good idea to protect your interests. Yes, the whole idea behind such a contract is to establish trust between two parties. But that trust only works when both sides are on equal ground. A lawyer’s guidance ensures that condition.

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Chained to a Contract?

In an NDA that puts you at a disadvantage, you have a legal option to get out of it. If your agreement doesn’t meet all the required elements, from the definition of confidential information to the period covered, your lawyer can challenge it. And a court might find it invalid. Your lawyer will argue that a broad definition that makes the terms oppressive can render the legal document unenforceable.

Like every law or policy, what is stated in an NDA has to be reasonable to be enforceable. So for example, if your employer’s NDA restricts you from seeking a job in a competing company because the skills you gained were from your old job, that is not about “confidential information.” It would be a different story if you were to sell the company’s schematics or data on proprietary products with your new employer.

Another way to get out of an NDA is to find out if the confidential information its protecting could now be public domain or that information was somehow disclosed to a third party. When data has been made public, the NDA no longer protects it. And you might be sued for breach of contract. The contract doesn’t cover a third party, and so they can share information.

Finally, certain states have enacted legislation that stops companies from requiring workers to sign NDAs that prevent them from exposing harassment, discrimination, or assault in the company.

The bottom line is never to sign any legal document without some professional advice. Whether it’s a required NDA before you’re hired or an agreement about a legal settlement, you have a right to challenge it if it leaves you at a disadvantage.

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