USD School of Law Professor Orly Lobel Quoted in Nieman Reports Article on Nondisparagement Agreements

Professor Orly Lobel Quoted in Nieman Reports Article on Nondisparagement Agreements

Don Weckstein Professor of Labor and Employment Law Orly Lobel

San Diego (November 14, 2017) - University of San Diego (USD) School of Law Professor Orly Lobel was quoted in the cover story of a Nieman Reports articleon nondisparagement agreements.

The article discussed the News Industry’s Sexual Harassment Problem. According to the article, one of the most significant barriers to dealing with sexual harassment in the newsroom is the propagation of nondisclosure agreements. While the original intent of these agreements was to protect intellectual property and trade secrets, companies are now trying to use them to cover the spread of workplace experiences and potential illegal abuses. In addition, severance packages and settlements are added to nondisparagement agreements in hopes of preventing employees from calling attention to negative experiences or harassments issues.

Commenting on the situation, Lobel explained, “many of these agreements may not be actually enforceable in court, especially if the plaintiff is sharing information with coworkers or aiding an investigation. But often the order’s enforceability may not be fully known until a company countersues. It’s a risk few harassment victims are eager to take, so nondisparagement agreements may effectively work as an intimidation tactic.”

While some states are considering legislation that would make it illegal to create nondisparagement agreements to cover harassment and discrimination allegations, the industry has a long way to go in providing a way for victims to come forward and take action. “We’ve just seen this used as a tool to chill the speech,” says Lobel.

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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