Last month, a Maine law went into effect banning the use of non-disclosure agreements (NDAs) that have the effect of silencing employee complaints of workplace misconduct. It is merely the latest in a growing list of states increasingly questioning and limiting employers’ ability to use and enforce broad NDAs against their employees. NDAs are so popular that employers routinely require them for all of their employees. These agreements started as ways to protect information like trade secrets, intellectual property, and confidential information. But employers have been expanding and broadening NDAs to the point where workers are unsure if they can complain about workplace misconduct without violating these agreements.
Sixteen states have enacted laws or issued regulations governing the use of NDAs, most of which were spawned out of the “Me Too” movement. In these states, NDAs may not be used to prohibit an employee from disclosing sexual misconduct, harassment, or assault in the workplace. Some states, however, have taken the prohibitions further. In addition to Maine’s new law, a recent Oregon law gives employees a private right of action if the employer’s NDA overreaches the permissible scope under state law, like prohibiting the discussion of discrimination. Illinois prohibits the enforcement of an NDA when the alleged disclosure violation is an act of whistleblowing.
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