A group of industry inclusion advocates, trade associations and action groups has launched a campaign to raise awareness of the systematic misuse of NDAs in relation to sexual harassment cases.
Through the "Make NDAs fair" campaign the group is calling on agencies, brands and leaders across the industry to adopt Fair NDA Policies.
This campaign comes nine months after Zoe Scaman published "Mad Men, Furious Women", a blog post that brought to light numerous stories of sexual and other harassment that women, many minorities, and men, regrettably experienced working within the advertising industry.
Although most people's experience of NDAs can be seen as reasonable and fair use to protect confidential business information and IP, it has been found that in some cases they are being 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 educate around this misuse of NDAs so that more people within the industry are aware of it and in a position to challenge it. With no changes in the law on the immediate horizon, the aim is to eradicate misuse of NDAs and confidentiality clauses and set an industry "best practice" standard.
The "Make NDAs fair" campaign is endorsed by partners including TimeTo, Nabs, Outvertising, Bloom, the Conscious Advertising Network, Creative Equals and WACL. Support for the initiative comes from growing list of agencies, including Quiet Storm, the7stars, The Elephant Room, Media Bounty and The Barber Shop.
Fair NDAs will also now be included as a recommended commitment in the Code of Conduct of the industry's TimeTo initiative to eradicate sexual harassment.
During 2022, the campaign will also be publicly calling on marketing organisations to include a Fair NDA clause visibly within their internal policies. As part of making a Fair NDA commitment, organiastions are being asked to communicate the clause to all existing and future employees and highlight basic training resources.
Creative director Jo Wallace, who has led the development of the campaign to mark the launch and calls on allies across the industry to share it across their professional social networks, said: "We've all heard horror stories from victims, whereby the silence and isolation that follows an unfair NDA causes ongoing, recurring trauma.
"We've created a simple campaign, which gives those who have been silenced a collective voice to raise this concerning issue. I urge everyone across the industry to listen and then help create meaningful change. Please pick some of the executions from our launch and share them far and wide across your own networks."
The campaign has outlined that 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".
Jerry Daykin, diversity ambassador, World Federation of Advertisers, said: "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 programme 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."
Shilpen Savani, legal expert, added: "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."
He continued: "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."