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Gretchen Carlson Takes on Nondisclosure Pacts, With GOP Backing

July 1, 2022, 9:30 AM

A pro-worker policy group headed by former Fox News anchor Gretchen Carlson is again taking to Capitol Hill, this time with legislation targeting nondisclosure agreements that silence employees reporting sexual harassment.

Less than six months ago, the same group—Lift Our Voices—ushered a similar bill into law, nullifying mandatory arbitration provisions for workers alleging #MeToo claims. That bill had bipartisan support from the get-go; the new measure on nondisclosure agreements has bicameral Republican support as well.

Carlson and her group’s co-founder, Julie Roginsky, are becoming adept at the art of achieving bipartisan support on wide-reaching worker protections, and are already looking at other forms of workplace toxicity to tackle next.

Carlson used the same playbook that brought her past success when strategizing for this new bill, she said.

“The issue was apolitical, and that was always my line when I got in the door,” Carlson said. “It’s not like we’re saying, ‘This is good enough.’ But this is a step in the right direction.”

‘Ban NDAs’

Rep. Lois Frankel (D-Fla.) is sponsoring the latest nondisclosure agreement bill, known as the SPEAK OUT Act (H.R. 8227), which she’s introduced in the US House. The measure has the backing of Reps. Ken Buck (R-Colo.), Morgan Griffith (R-Va.), and Burgess Owens (R-Utah).

A Senate companion bill is expected to be introduced, and Marsha Blackburn (R-Tenn.) and Lindsey Graham (R-S.C.) are already on board, according to Lift Our Voices. The two Republican senators didn’t respond to a request for comment.

Nondisclosure agreements are widely included in employment contracts, are legally binding, and prevent workers from speaking out about workplace practices. That could mean protecting trade secrets, or could result in silencing allegations of misconduct.

Federal legislation has been proposed to rein in the practice, but there’s been much more action at the state level. Washington state and California have passed their own sweeping laws limiting the provisions, and corporate America is following suit. Salesforce Inc. and Microsoft Corp. both recently limited their nondisclosure agreement use to ease misconduct reporting.

The SPEAK OUT Act is narrow, applying to pre-dispute nondisclosure agreements. It would exclude those signed after a worker has, for example, reached an agreement with an employer to settle harassment allegations. Carlson herself still is bound by such an agreement.

“This will mean that upon employment on your first day, you cannot be forced to sign an NDA,” she said. “We, as an organization, want to ban NDAs for settlements as well.”

Read More: What Banning Forced Arbitration for Harassment Means: QuickTake

Finding Common Ground

Lift Our Voice’s last major legislative victory on arbitration agreements for #MeToo claims can be classified as a widely bipartisan effort. The House passed its version of the measure 335-97 in February, and the Senate passed its version with a voice vote soon after—a rare feat in the evenly divided chamber.

Buck, an ally of Carlson’s in the House, said his GOP colleagues acknowledged that arbitration was an issue and needed to be addressed, but that limiting nondisclosure agreements should quickly follow.

“It is a difficult time to reach across the aisle and get things done,” he said. “When it comes to something like this, we find common ground.”

The “legitimate” debate around the arbitration bill—which resulted in an agreement on the definition of sexual harassment—gave them a path they could replicate with this new bill, Buck said.

“I had a senior member of leadership come to me and say, ‘I listened to the debate on the floor and I changed my opinion—you’re right, this is something I should do,’” Buck said.

Next Steps

Immediately following the Senate passage of the bill limiting the use of arbitration agreements, critics asked why it only applies to allegations of sexual harassment and not, for example, race discrimination. Carlson said the mission is to advocate for any protected class of worker forced into arbitration or quieted by a nondisclosure agreement.

“We do this work on behalf of all of the people who have been silenced that you don’t even know about,” Carlson said. “Here we go again.”

It also starts with workers themselves speaking up about why some may be forced into arbitration while others aren’t.

“We think that that will create a grass-roots, organic movement inside of the workplace, where other protected classes will say, ‘Well, what about me?’” she said. The current employment landscape, which generally gives workers more latitude about what they’d like to do and where, also helps.

“Do they want to work for places that subject them to silence? Probably not,” she said.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com