USD School of Law Professor Orly Lobel Quoted in Bloomberg Article on NDAs in the Workplace

Professor Orly Lobel Quoted in Bloomberg Article on NDAs in the Workplace

Don Weckstein Professor of Labor and Employment Law Orly Lobel

New York (October 18, 2017) – University of San Diego (USD) School of Law Professor Orly Lobel was quoted in a Bloomberg article about nondisclosure agreements (NDAs) and other contracts in the workplace that ensure employees stay quiet about harassment, and used the example of the recent sexual assault and misconduct allegations made against Harvey Weinstein.

The article states that, in workplace harassment cases—both in Hollywood and in the rest of the American workforce—many companies try to use NDAs and other legal agreements to protect the employer from legal consequences for wrongdoing and, whether that is the intention or not, to keep criminal behavior out of the public eye and the courts.

According to the article, the constellation of people for whom a settlement can become a pact for silence is relatively small. Only from 6 percent to 13 percent of victims formally report workplace harassment to their employer or law enforcement, according to a recent study by the Equal Employment Opportunity Commission. NDAs are geared to ensure that the fraction of people who do come forward can’t warn others or bring claims to light, all of which contributes to the culture of silence around workplace harassment. 

“It should be a question of whether all of this is enforceable for public policy reasons,” said Lobel. “When these stories come out, it helps every one understand their rights and what is totally inappropriate and unlawful.”

The specter of a lawsuit by an employer, past or present, is one part of what keeps people quiet. “You might see a nasty threatening letter...saying we’re going to bankrupt you,” Lobel said. Dealing with a lawsuit, even if you win, is expensive. 

Read the full article online.

About Professor Orly Lobel

Orly Lobel is the Don Weckstein Professor of Labor and Employment Law at the University of San Diego, where she teaches and writes in the areas of employment law, intellectual property law, regulatory and administrative law, torts, behavioral economics, health policy, consumer law and trade secrets. Her current research focuses on innovation policy and intellectual property. Lobel ‘s works include Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free-Riding (Yale University Press, 2013); “The Incentives Matrix: The Comparative Effectiveness of Rewards, Liabilities, Duties and Protections for Reporting Illegality” in 88 Texas Law Review 1151 (2010); “Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations” in 97 California Law Review 433 (2009); Encyclopedia of Labor and Employment Law and Economics (Dau-Schmidt, and Harris, eds.) (Edward Elgar Publishing, 2009); “Behavioral Versus Institutional Antecedents of Decentralized Enforcement in Organizations: An Experimental Approach” in 2 Regulations & Governance 165 (with Feldman) (2008); “Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy” in 108 Columbia Law Review 2098 (with Amir) (2008); “The Paradox of Extra-Legal Activism: Critical Legal Consciousness and Transformative Politics” in 120 Harvard Law Review 937 (2007); and “The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought” in 89 Minnesota Law Review 342 (2004). Her articles have won several awards including the Thorsnes Prize for Outstanding Legal Scholarship and the Irving Oberman Memorial Award. Lobel is a frequent speaker at universities throughout Asia, Europe and North America. She was USD's Herzog Endowed Scholar for the 2012-13 academic year and was the 2013-14 recipient of USD’s Thorsnes Prize for Outstanding Legal Scholarship.

About the University of San Diego School of Law

The University of San Diego (USD) School of Law is recognized for the excellence of its faculty, depth of its curriculum, and strength of its clinical programs. Each year, USD educates approximately 800 Juris Doctor and graduate law students from throughout the United States and around the world. The law school is best known for its offerings in the areas of business and corporate law, constitutional law, intellectual property, international and comparative law, public interest and taxation.

USD School of Law is one of the 84 law schools elected to the Order of the Coif, a national honor society for law school graduates. The law school’s faculty is a strong group of outstanding scholars and teachers with national and international reputations and currently ranks 35th nationally and 6th on the West Coast among U.S. law faculties in scholarly impact and 20th nationally and 4th on the West Coast in past-year faculty downloads on the Social Sciences Research Network (SSRN). The school is accredited by the American Bar Association and is a member of the Association of American Law Schools. Founded in 1954, the law school is part of the University of San Diego, a private, independent, Roman Catholic university chartered in 1949.


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