Make NDA’s FAIR
Fair NDAs comes nine months after Zoe Scaman published ‘Mad Men, Furious Women,’ a blog post that shone a light on the countless stories of sexual and other harassment that women, many minorities, and indeed sometimes men, regrettably experience working within the advertising industry.
Most people’s experience of NDAs is perfectly reasonable and fair use to protect confidential business information and IP. Unfortunately, some in the media industry and other sectors have seen a darker side, in which they are used to silence victims of sexual abuse and prevent them from speaking about their experiences, even to their family.
The Make NDAs Fair campaign hopes to achieve two key goals:
To educate around this misuse of NDAs so that more people within the industry are aware of it and in a position to challenge it. That includes better knowing your own rights, being able to support friends or colleagues in this situation, or for leaders to drive fundamental change in their organisations.
To publicly call on marketing organisations to include a Fair NDA clause visibly within their internal policies. As part of making a Fair NDA commitment they should communicate this clause to all existing and future employees and sign post basic training resources.
Creative Equal’s was proud to pull together a group of industry inclusion advocates including Jerry Daykin, World Federation of Advertisers Diversity Ambassador, Shilpen Savani, Employment Lawyer at gunnercooke llp and Lorraine Jennings-Creed, Director of Culture Change and Wellbeing Services at NABS, to launch a new ‘Make NDAs Fair’ campaign to raise awareness of the systematic misuse of NDAs in relation to sexual harassment cases. This group calls on agencies, brands and leaders across the industry to adopt Fair NDA Policies.
NABS joins a number of industry action groups and trade association in support of the campaign including Outvertising, Bloom, the Conscious Advertising Network, Creative Equals and WACL, and a growing list of agencies, including QuietStorm, Seven Stars, The Elephant Room, Media Bounty and The Barber Shop. Fair NDAs will now be included as a recommended commitment in the Code of Conduct of the industry’s #timeTo initiative to eradicate sexual harassment.
"It’s time there was reform in this area. Going forwards, we have to make sure sexual predators in the industry are not protected. This has happened in the past where sexual abuse victims have been gagged, while predators have gone on to progress unhindered and abuse multiple times"
- Ali Hanan, CEO of Creative Equals
A Fair NDA Policy should include the following:
Absolute freedom to report workplace abuse and sexual harassment.
Paying compensation to settle a workplace abuse and sexual harassment claim has nothing to do with silence.
Protection of reputation should apply to the employer only. No blanket protection for individuals.
Workers should be independently advised before accepting an NDA.
In July 2019 the UK government committed to legislate in this area “when Parliamentary time allows”. Unfortunately, with no changes in law on the immediate horizon, it is our ambition as an industry to move faster, eradicate sexual abuse of NDAs and confidentiality clauses and set an industry “best practice” standard. We believe this is one of, but not the only, key steps to take to reduce the sexual harassment and abuse that many of those in the marketing industry have regretfully experienced.
If you want to personally take a first step towards raising awareness and tackling this problem then please share some of the creative executions shown on this blog across your professional and personal social networks. Download the assets and social media pack .
We encourage all those affected by this subject to explore the resources offered by timeTo and NABS, including confidential 1:1 support where required through the NABS Advice Line: 0800 707 6607/support@nabs.org.uk.
"NDAs aren’t the root of the problem, but they stop the problem being rooted out. I’ll be honest, I had relatively little awareness of this, but the Bloom Exchange program and listening to voices of those who have been affected spurred us on to act. As we painfully heard in Zoe’s article, brands are far from innocent in this and we certainly need to ensure our own houses are in order too. We do also have a role within the industry to push our partners to make this commitment and do the same."
- Jerry Daykin, World Federation of Advertisers Diversity Ambassador
Template Fair NDA Clauses
Example clauses for suggested inclusion in ISBA Media Services Agreement 2021
or equivalent contract
22.3 The Agency warrants and undertakes on its own behalf (and on behalf of each Related Party) to at all times adhere to the Client’s Fair NDA Policy). The Fair NDA Policy includes the following commitments:
22.3.1 the Agency will not impose, permit or condone any obstruction to reporting of harassment, bullying or discrimination by Associates within the Agency or to external authorities;
22.3.2 any compensation payment by the Agency to Associates relating to workplace harassment, bullying or discrimination will be independent of any confidentiality, non-disparagement, or non-disclosure obligations imposed;
22.3.3 any contractual obligation imposed on Associates to protect the reputation and/or prevent disparagement of the Agency shall be limited to the Agency only. Where individuals are included this will be subject to the consent of the Associate(s) and limited to relevant individuals only; and
22.3.4 the Agency will ensure that free and independent legal advice is offered to any Associate before they are required to commit to a binding confidentiality obligation or non-disclosure agreement. The Associate will be permitted to appoint their own adviser and a copy of any resulting agreement will always be provided to them on request.
The Client’s FAIR NDA Policy can be found here: [insert link]
OR
22.4 The Agency warrants and undertakes on its own behalf (and on behalf of each Related Party) to at all times to adhere to the Client’s Fair NDA Policy. The Client’s FAIR NDA Policy can be found here: [insert link].
“In employment contracts, confidentiality clauses are routinely used to protect confidential information and there’s nothing wrong with this if employees understand what is being asked of them. But when there is a dispute and employers offer outgoing employees a settlement agreement, this frequently introduces strict secrecy clauses with the threat that even a minor breach will jeopardise the employee’s whole compensation.
This is unfair because the compensation paid is mainly for past matters and should not be tied to secrecy. Of course the aim is to secure a clean break but these clauses can go too far.
After all, there would be no such protection in a court or employment tribunal, where cases are heard in public. It becomes even worse if such clauses end up shielding workplace bullies and deter victims of sexual harassment or other misconduct from reporting this. This is not unique to advertising and is a problem that applies in other sectors too. We are asking decision makers and their advisers to recognise this issue, which can happen unintentionally, and improve their practices.”
- Shilpen Savani, Employment Lawyer at gunnercooke llp