Hollywood jobs come with a few rites of hiring — the ID card, the HR paperwork, the nondisclosure agreement.
From film sets to agencies to executive suites, NDAs still are in common use in the entertainment industry, despite coming under scrutiny recently for their application in high-profile sexual misconduct settlements at NBCUniversal, Fox News and The Weinstein Co.
Young entertainment professionals eager for jobs are — so far — still signing the controversial confidentiality agreements. “People may grouse about NDAs, but it’s still the case that people want to work in this industry, and they will most often sign what they’re required to sign in order to do so,” says Ann Fromholz, an employment lawyer who conducts investigations into workplace misconduct.
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That’s certainly the case for actor Arvin Lee, 28, who has appeared on Veep and Arrested Development, and has had to sign NDAs before auditioning for certain projects. “I’m probably more in the ignorance-is-bliss camp,” Lee says. “I just assume that if a project is big enough, it needs an NDA.”
Over the past two years there have been efforts to limit the use of NDAs, such as the passage of new laws in 13 states, including California and New York, designed to focus the tools more narrowly on the protection of confidential business information rather than on covering up a company’s bad practices. Some employers have begun proactively revising their standard NDAs to make explicit that they do not cover allegations of harassment or discrimination.
“The standard NDA is broad, and they have non-disparagement clauses that can cover everything,” says Time’s Up president Tina Tchen, who called on NBCUniversal to release its employees from their NDAs in October. “What we’ve learned over the last two years is that what looks like a vanilla corporate agreement can be detrimental to the workplace, not just to employees but to others in a company learning about the prevalence of a problem. You don’t realize you have a toxic culture because it’s dealt with in secret.”
The issue of NDAs drew new attention Oct. 25 when NBCUniversal issued a statement allowing former staffers to be released from their agreements — if they checked with the company’s legal department first. The move, sparked by criticism of NBC News in Ronan Farrow’s book Catch and Kill, drew a sharp rebuke from Tchen and others. “Requiring survivors to come forward again to the employer they left in a moment of trauma isn’t a good practice,” Tchen says. “These are the kinds of things that make people fearful about coming forward.” After NBC’s announcement, several former Fox News employees, including Gretchen Carlson, asked to be released from agreements as well.
In some industries, it has been the youngest entrants who are pushing back at the secretive practices that companies have long relied upon to deal with worker complaints, as when a grassroots group of law students organized at Harvard in 2018 to oppose mandatory arbitration for summer associates at law firms. The practice, in which employees waive their right to sue over illegal treatment at work, tends to favor corporations over workers. The group, called the People’s Parity Project, called on law students to boycott firms that required the arbitration, and succeeded in convincing major firms, including Kirkland & Ellis and Sidley Austin, to change their policies.
“This younger generation that has grown up on social media and feels comfortable talking about their personal lives views issues like pay secrecy and NDAs very differently,” Tchen says. “A lot of millennials who had pay secrecy rules in place at their companies were posting their salaries online. They do not have the inhibitions around talking about these issues that my generation did.”
There’s another reason why younger employers may eventually be inclined to push back on signing broad NDAs — they’re likelier than their older peers to complain about their workplace culture.
“There’s a willingness among a younger generation to speak up when they don’t like something, regardless of whether it violates company policy,” says Fromholz. “People are still going to do things at work that are not appropriate, but this generation is more willing to speak up about it when they do.”
This story first appeared in the Nov. 6 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.
