A coalition of advertising industry inclusion advocates, trade associations and action groups was formed to launch the ‘Make the NDA Fair’ campaign and raise awareness of the systematic misuse of the NDA in Adland in relation to sexual harassment cases.
In many cases, NDAs are perfectly reasonable and are used to protect confidential business information. Unfortunately, some of the advertising, marketing and media industries have seen the dark side of NDAs. NDAs are used to silence victims of sexual harassment and abuse and prevent them from talking about their experiences even to their closest loved ones.
Nine months ago, Zoe Scaman published a blog post, Mad Men, Furious Women, highlighting the many stories of sexual and other harassment that many people, especially women and marginalized groups, have experienced while working in the advertising industry. The coalition was then formed with the aim of including the Fair NDA as a recommended commitment in the industry’s #TimeTo initiative’s code of conduct to combat sexual harassment.
Launched today at the Creative Equals Rise event in London, the group is urging agencies and leaders across the industry to adopt a more equitable NDA policy. Partners including TimeTo, Nabs, Outvertising, Bloom, Conscious Advertising Network, Creative Equals and Wacl, and a growing list of agencies including QuietStorm, The7stars, The Elephant Room, Media Bounty and The Barber Shop.
Jerry Daykin, Coalition President for Outvertising and World Advertising Federation (WFA) Diversity Ambassador, Jerry Daykin, told The Drum how the initiative got started. worked,” he said. .”
He says: “Perhaps the most important thing I learned from all those stories was the secondary harm that NDAs seemed to cause by further isolating affected individuals and potentially allowing the same problems to happen again in others. “
what’s the issue?
Legal expert Shilpen Savani explains that confidentiality clauses are routinely used to protect confidential information in employment contracts. “It doesn’t matter if employees understand what they’re asking,” he says.
However, in some cases, settlement agreements compromise historical claims, and any financial compensation offered is primarily for past wrongdoing. It is also worth noting that the majority of employment claims are heard and decided in open forums by employment tribunals. Here, because employers (and employees who engage in illegal activities) cannot escape the public eye and media attention, when the employer insists on confidentiality, in clauses within the Settlement Agreement, this is something a judge of an employment tribunal can normally order. More than that, extra protection.
Abuse can occur when the full amount of compensation paid to a worker in an agreement is strictly subject to compliance with the confidentiality clause and the full amount of compensation, no matter how minor, is recoverable with all associated costs.
These provisions sometimes prevent workers from talking about their experiences to anyone, including healthcare professionals and support workers. Others allow disclosure to immediate family members or legal counsel, but not to friends or friends.
Retiring employees have little freedom to tell third parties or new employers why they left their previous positions.
In addition, employers regularly work to protect the reputation of not only the employer, but also all affiliated companies, all employees, and sometimes even shareholders within a conciliation agreement. Worst of all, this has the effect of protecting the suspected perpetrator and allowing the behavior to continue in an unidentified state.
“It’s not just an advertising issue, it’s an issue that applies to other areas as well,” says Savani. “We ask decision makers and advisors to be aware of this unintended problem and to improve their practices.”
Creative Director Jo Wallace led the development of a campaign to celebrate the launch, inviting industry allies to share it on professional social networks. “We’ve all heard horror stories from victims that the silence and isolation following an unfair NDA causes lasting and recurring trauma,” she says.
“We created a simple campaign to bring a collective voice to raising this issue to those who have been silent. We urge everyone in the industry to listen and help make meaningful change. Pick some runs from the launch and share them broadly over your own network.”
Meanwhile, Daykin adds: “The first and most important step when starting this work is to raise awareness that this is a problem. This means letting people know where to start asking questions, driving these changes, and getting support from Nabs or others. The next step, of course, is the challenge for companies to consider formal policies and approaches in this area.”
What is the campaign trying to achieve?
The campaign hopes to educate the industry on this misuse of NDAs, so that more people are aware of and in a position to challenge NDAs. This includes knowing your rights better, being able to support a friend or colleague in these situations, and, in the case of a leader, driving fundamental change within the organization.
It also publicly requires marketing organizations to prominently include a fair NDA clause in their internal policies. As part of their impartial NDA commitment, this provision must be communicated to all existing and prospective employees and indicated basic training resources. The appointment must include:
Interference with reports of workplace harassment and bullying will not be tolerated.
Compensation payments related to allegations of workplace harassment, bullying or discrimination must be completely independent of any confidentiality obligations in the agreement.
When a demeaning clause is used in a settlement agreement involving an allegation of workplace harassment, bullying or discrimination, it must be strictly limited to the employer. If individuals are involved, this requires the consent of the departing worker and is limited only to the individuals involved.
- All workers must obtain independent legal advice at their employer’s expense before signing an NDA or accepting any confidentiality/confidentiality clause. A copy of the resulting contract must always be available to workers upon request.
However, as Daykin notes, brands also play a role in ensuring that NDAs are used correctly and not exacerbating the problem of silencing sexual harassment and abuse. “Brands are far from innocent in this regard, and we need to keep our own homes in order too,” he says.
“I am proud to represent Outvertising and WFA as we launched this. [vice-president and head of media at Beam Suntory] We recently shared a preview with our internal team and some of the key organizations we work with so they can see how they respond. We are starting this process by announcing it to the Isba D&I community, sharing it amongst TimeTo members and of course speaking at Rise today. The international reality is that the legal context and use of NDAs varies widely from market to market, so a local approach must be taken to understand what is relevant elsewhere.”
What should a fair NDA policy include?
Absolute freedom to report abuse and sexual harassment in the workplace.
Paying compensation to address allegations of workplace abuse and harassment has nothing to do with silence.
Reputation protection should only apply to employers. There is no comprehensive protection for individuals.
Workers must be independently advised before accepting an NDA.
In July 2019, the UK government promised to legislate this area “when Parliament time permits”. However, without immediate legislative changes, the coalition concluded that the advertising industry was moving faster to eradicate sexual abuse under NDAs and confidentiality provisions and to set industry “best practice” standards.
“We believe this is one of the major steps we need to take to reduce the sexual harassment and abuse that many in the marketing industry have unfortunately experienced, but it’s not the only one,” says Daykin.
The Drum and Make NDAs Fair encourages everyone affected by this topic to explore the resources provided by TimeTo and Nabs, including confidential one-on-one assistance if needed, through the Nabs Helpline. Call 0800 707 6607 or email [email protected]
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