Non-disclosure agreements (NDA) started in the tech world as a way to protect trade secrets. But they haven’t stayed there.
A recent World Magazine story noted:
This practice from corporate America is now common among religious nonprofits. Done right, confidentiality agreements help institutions protect members’ privacy and can fend off ruinous litigation. But NDAs can also mask institutional disease and leader misconduct. And even when an institution doesn’t enforce its NDA, the widespread institutional fear of liability can lead to unintended, devastating outcomes.
In her reporting, World Magazine’s Emily Belz examined a number of Christian ministry NDAs and spoke with former employees who had signed them. She joined digital media producer Morgan Lee and editor in chief Mark Galli this week on Quick to Listen to discuss why this practice has become so common among Christian ministries, who it serves, and who it hurts.
This episode of Quick to Listen is brought to you in part by Intensional. D.A. Horton unpacks how God addresses these issues and where to take it from there in his new book Intensional. Go to dahorton.com to learn more about Intensional.
This episode of Quick to Listen is also brought to you by Christianbook.com, your go-to source for everything Christian. Books, Bibles, gifts, music and more, all in one place. And always from people who share your values. Go to Christianbook.com.
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Highlights from Quick to Listen: Episode #185
Can you just tell us how and why you first got interested in the subject of NDAs and nonprofits?
Emily Belz: I think that WORLD magazine has been dealing with this in its reporting since before I was born.
Since I've been on staff, we've run into this so many times with subjects that we've interviewed where some sort of misconduct would happen at an organization or a college or university, and the person would talk to us initially and then not want to go on the record because of some sort of confidentiality agreement.
What happens often is that someone will leave an institution over some sort of misconduct and will quietly sign some severance agreement, then the institution can't really give any sort of detailed reference to the next institution that hires that person. We've seen this happen so many times where there's just not information sharing between institutions because of fear of liability and often that goes back to confidentiality agreements. This is something that's been in the back of our minds a lot for many years as journalists, it's just a brick wall that we run into a lot, so we wanted to look into some of the nerdier details of it here.
One thing I learned in the course of reporting this is that a key to a successful lawsuit is being able to specify the damages caused. And so in those cases, it's really easy for a plaintiff to show the damages. If you're not hired because of some reference that your previous employer made, it's much easier to bring a lawsuit in those cases.
Why would a company create an NDA for someone who has committed misconduct? Why is there any secrecy around that type of thing?
Emily Belz: NDAs can have such a wide use and they can be specific to a situation or they can also be very broad. I think that the issue for an institution is, "how much can we spend on litigation?" And so even if the former employee doesn't have a case that will hold up in court, it's not worth it for the organization to spend hundreds of thousands of dollars to be willing to go to court over that. So the point of private settlements is, "we're going to have this person leave the organization without litigation and save ourselves a lot of money."
But I will say that pretty much everywhere, nondisclosure agreements don't protect you from subpoenas. So employees could bring criminal charges against a person or file their own lawsuits that wouldn't involve the organization. So then you start to get into the messy legal weeds.
I think it's helpful to remember that NDAs are focused on the organization. The question is, did the organization somehow enabled this executive to remain in power or not? Did they know about the harassment and they didn't do anything about it? That's where they would face liability. They're not going to face liability over his direct actions unless it's a sign of the organization's negligence, because, from my understanding, the cases between the employee and the person who committed the harassment would be separate from whether the institution is liable.
You could also agree to a settlement from a company and you sign an NDA to say that you won't file any suits against them. That can be a way to treat employees well even when something hasn't happened so that if a meritless suit comes that saves you a lot of money and keeps you from having to go to court.
The normal situation would be that if you're a victim and you're signing an NDA, it's because you got a settlement and you're agreeing to take that money on the condition that you won't talk about it.
From your research, when did you start noticing that corporations started employing NDAs? And then when did nonprofits also begin to do the same?
Emily Belz: There's not actually a lot of history about how NDAs came to be, but the Columbia Journalism Review tried to pull as many scraps together as they could, and it really was a corporate practice to protect trade secrets. So initially, NDAs were used in a very narrow sense. But I think in the 80s they just proliferated, and everyone started using NDAs just as a way to protect against liability. And that spread to the nonprofit world.
Just for my anecdotal experience reporting this piece, it seems like churches and nonprofits are using the same lawyers who do employment litigation for corporations. And so the lawyers are saying, "This is what we do in this scenario, so you all should do the same thing if you want to be smart."
There aren't very many lawyers who are doing specific nonprofit, church-related work. It's usually somebody who makes most of their money doing employment policies for large corporations, and then on the side, they'll do some church HR-type work. So then they're giving the same advice they would give to a corporation essentially.
One lawyer that I talked to just said, "If you're disclosing every settlement that you make, then everyone's coming for a piece of the pie." Confidentiality and settlements are something that we have to live with, I think the question is, what parameters do you put on that? And some churches have really wrestled with that.
The Catholic Church, for instance, has chosen to disclose settlements on sexual matters, but Protestant churches are still trying to figure out what to do. With the Catholic church, there doesn't seem to be an enforcement mechanism to keep them disclosing settlements, but they had a lot of public pressure just related to all the sex scandals as they came out and felt that this would be a good way of transparency to show some of the more serious settlements.
I talked to one lawyer in Texas, who's an employment lawyer who actually does these settlements for his main job, and he wrote to the head of the U.S Catholic Conference of Bishops and said he thought that they should disclose everything on a website, they should have the specific amounts, because then parishioners would know how serious the allegation was. So this is somebody who deals with this on a day-to-day basis and I imagine that the Catholic church would take that kind of advice more seriously from someone who knows how important confidential settlements are to the survival of institutions, but also wants to preserve the health of the institutions in the long-term by having transparency.
I think there's more pressure from within the church to try to make this a little more transparent.
I think what happened in Texas was a good measure. There was that huge expose in the Houston Chronicle about sexual abuse in Baptist churches and how pastors and other leaders moved from place to place without much accountability because of confidentiality. In response, Texas passed a law that allows churches or other nonprofits to disclose sexual misconduct allegations to future employers as long as it's in good faith. I think those parameters are good because if it's clear that there's some sort of slander in that or bad motivations in sharing that information then the institution would still be open to liability. But that's only in Texas right now, it doesn't extend to other states.
Do you have a sense about how many Christian ministries are you using NDAs, or just how popular they are?
Emily Belz: I think it's pretty widespread, and the reason I would say that is there's some form of a confidentiality agreement in just about every company or organization. But when I did this story, I asked people to send me their agreements from their workplaces if they had them, and I got a lot of material and it was varied.
It could be one paragraph in the employee handbook that would say, "we want to protect the confidentiality of our members" or it would go as far as a five-page contract that you're signing, that's much more of a legal document. There was a wide variety, but I think there's a thread throughout Christendom.
One of our interns did the hard work of calling a bunch of megachurches around the country to ask what their policies were, and a lot of the biggest churches in the country use non-compete clauses, they use non-disparagement clauses, these non-disclosure agreements—in severance packages most predominantly, but also just as a matter of policy.
I would also just add that these agreements and clauses can sometimes sort of be like those iTunes terms of service agreements that you don't look at, and when our intern called all these places, a lot of people just didn't even know that they had them. They would tell us, "we don't do NDAs, we don't have those," and then employees would send me their NDAs from that organization that just told us they didn't do NDAs. I think often it's sort of a footnote that the church isn't even really aware of.
Could you share with us some of the groups that you got the NDAs from and what their NDAs looked like?
Emily Belz: To be honest, we got a lot of NDAs and decided not to write about them because of the potential for litigation. However, the lawyers I talked to said there aren't very many examples of courts actually enforcing NDAs for nonprofits. It's just to kind of cloudy area of law. They might not be liable if they broke the NDA, but they might so they abide by the NDA. But we wanted to err on the side of caution.
But as an example, I heard from someone who works at a Christian radio station who sent me their NDA, which was very broad. It said that he couldn't share any information of any kind about the radio station. Most of these agreements bar you from disclosing that the agreement exists even. That agreement also had a non-compete for other radio stations in the area.
I heard from an employee from Open Doors USA, which is an organization that is an advocate for persecuted Christians around the world, and they required this person to sign an NDA as a condition of severance, which is also pretty common. What I heard from a number of people is that you're getting laid off and you suddenly don't have a source of income, so there's a lot of pressure to sign that document unless you have some blockbuster allegation that you think is worth sharing. With this person, they did consider not signing it and decided that the family had to come first and so went ahead with signing it.
I also talked to someone who was an employee at New Spring, which is a megachurch in South Carolina, who was required to sign an NDA as upon severance and that included a non-disparagement clause.
Non-disparagement clauses are an interesting discussion because it does make sense that you want people to cool their heads a little bit if you get laid off and not say some negative things about the organization, but it's also just a strange thing for a church to say, "you're not allowed to disparage us as a condition of receiving this money."
As a journalist, I tend to see the side of organizations being self-protective over these things. Whenever you question them about something that happened, there's a sense of if we let anything negative come out, it's going to ruin our organization forever. And my perspective is obviously that sunlight is the best medicine. If somebody's going to say something negative about you, you can also respond to that. And so it does seem in some ways that the organization has the cards in its hand when it's paying the salaries and holding these legally binding agreements over someone rather than just a covenant or some kind of more informal thing.
How often have you ended up interviewing potential sources that have signed NDAs? And how does your organization handle protecting their confidentiality or deciding to run their quotes or their information? What does that balance look like for you guys?
Emily Belz: We always want to protect sources who face consequences for talking to us about certain things. We have a pretty strict policy on anonymity, so we very, very rarely use anonymity. The policy we have essentially is that if your life or livelihood is in danger, we will grant you anonymity.
We try to encourage people to go on the record as much as possible, just so you're able to know what their motivations are. Because if you have an anonymous source there could be many things that you don't know that are happening in the background that you don't want to be used as a magazine to advance their personal agenda or vendetta or whatever it may be. So that's kind of why we try to stick to using names as much as possible.
In this case, obviously, I didn't use names for the people who had signed NDAs because it would be either a threat to their livelihood or they would be under a lawsuit for breaking the NDA. But it's a thing that we wrestled through a lot because you want to be transparent in your reporting and not just require that of the institutions.
As we wrap up, was there any other surprising information that you learned over the course of reporting this story with regards to HR or employee policy that you wanted to share?
Emily Belz: Yeah, one thing that comes to mind—and this is something I don't fully understand because I'm not an employment lawyer—in a lot of scenarios, institutions have insurance that will pay for settlements and one lawyer interviewed told me that insurers require a confidentiality agreement if they're going to cover the settlement. So I think that's something that would be worth looking into more, to see what insurance policies are on this. Because that might prevent a church from following through on trying to be transparent if they don't have any insurance that's going to back them up.
It's so complicated. And I've gotten enough pushback from this story from lawyers and all the rest to know that there's a lot more to dig into here.