One Year Since the Speak Out Act, NDAs Still in Use by Ministries
The agreements remain controversial, and movements to end their use are growing.
As part of his settlement with the Christian ministry Kanakuk Kamps, abuse victim Logan Yandell signed a nondisclosure agreement (NDA). Now he is suing the ministry and asking the court to set aside the NDA because Yandell claims it was based on fraudulent misrepresentations by leaders at Kanakuk.
The use of NDAs has become more controversial in recent years, especially in light of the #metoo and #churchtoo movements that brought to light sexual abuse and the use of NDAs to silence victims.
According to the National Association of Evangelicals (NAE), 93% of evangelical leaders believe NDAs should be waived when a leader faces credible allegations of abuse.
The definition of NDA can be amorphous and unclear, attorney Boz Tchividjian told MinistryWatch. Sometimes it might refer to a confidentiality provision in a settlement agreement in which both parties agree to not disclose the payment amount. It may refer to a provision as a condition of employment that an employee not reveal trade secrets and other sensitive company information. These types of agreements are generally accepted.
However, NDAs that are most controversial are commonly understood to be agreements between an employee and employer to keep silent about the very acts that gave rise to a claim against the employer, Tchividjian explained. Requiring them at the time employment begins has been a growing trend, he said.
Another aspect making NDAs controversial is that they’ll often include a liquidated damages clause, setting a specific dollar value on a violation of the NDA. Even though an employer may not be able to prove any damage resulted from violating the NDA, the employee is still on the hook for the liquidated damages amount, Tchividjian said.
Sometimes, non-disparagement clauses, which attempt to keep the employee from “saying something negative,” are included. These vague clauses usually don’t define what constitutes disparagement and continue indefinitely, he added.
Last December, President Joe Biden signed the Speak Out Act into law. Its intended purpose is “to limit the judicial enforceability of predispute nondisclosure and nondisparagement contract clauses relating to disputes involving sexual assault and sexual harassment.”
While it is a good first step, Tchividjian doesn’t think it gives as much protection as one might first believe. It doesn’t eliminate NDAs—it just makes an NDA “agreed to before the dispute arises” unenforceable.
Questions about when the “dispute arises” are not yet settled, Tchividjian said. By contrast, a similar law in California prohibits NDAs entered into after a lawsuit is filed. The line in California is much clearer—once a lawsuit is filed no NDA is permissible. However, in the federal law, the dispute may or may not be interpreted as the lawsuit.
Furthermore, because NDAs are not prohibited and only made unenforceable, Tchividjian wouldn’t be surprised to learn that churches and Christian ministries are still using them. “If an employee doesn’t know it’s unenforceable, then the power of the agreement prevails,” he said.
According to the MinistryWatch quarterly survey of Christian ministry executives, 27% of ministries use NDAs as part of a severance situation or in a settlement.
Because of his own experience as a whistleblower under pressure to sign an NDA, Ben Nicholson is on a mission to bring an end to such practices. He started NDAFree, “a global movement with a vision to see individuals, Christian organizations, and local churches free from the misuse of [n]ondisclosure [a]greements.”
“There is something specific about the Christian faith which means NDAs have no place, except for data or intellectual property protection. Relying on NDAs erodes the public trust,” Nicholson told MinistryWatch.
- We pledge to never request another party to submit to an NDA and we will not use confidentiality agreements in settlements.
- We pledge to always follow policies and due processes such as grievances, whistleblowing, capability and misconduct and to always investigate wrongdoing, even where a settlement agreement is reached.
- We pledge not to use non-disparagement clauses with employees or volunteers.
He admits the pledge is from a “purist” perspective. Even if a church or ministry doesn’t feel comfortable taking the pledge, he believes it is important they reveal their policies about NDA use.
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“If a values-based Christian ministry is using an NDA and feels it is legitimate use, then they should be open and transparent about it,” Nicholson said.
He has been collaborating with some others who share his concerns about NDAs to raise the issue with the Evangelical Council of Financial Accountability (ECFA), asking them to consider adding a ministry’s NDA policy to one of their Seven Standards of Responsible Stewardship™.
MinistryWatch asked the ECFA about its policy regarding NDAs and what plans it has to address the issue in light of the Speak Out Act.
“ECFA does not have a standard that directly addresses the use of NDA’s. However, we do post resources on a variety of topics that may not be required by ECFA Standards,” Jake Lapp, vice president of member accountability replied.
“Currently, we do not have anything specific to the Speak out Act or the use of NDAs, but we are considering publishing resources by respected experts in this area to help educate our members on the topic,” Lapp added. “We also encourage organizations to work with their legal counsel to ensure both legal compliance and any ethical considerations when it comes to the use of NDAs.”
The Evangelical Council for Abuse Prevention (ECAP) also believes NDAs should be used sparingly. “NDAs should never be used to silence victims, protect offenders, or help an organization avoid accountability. Christian organizations must have justice and care for survivors as a top value. Ministry leaders should be proactive in doing what’s right in the arena of protection and care,” ECAP General Editor Briggham Winkler told MinistryWatch.
While he believes the Speak Out Act is right in voiding NDAs meant to silence victims, Winkler added, “As followers of Jesus, it’s our job to go above and beyond caring for image-bearers, which is why we should seek to exceed legal expectations when it comes to child protection, abuse prevention, and survivor care before the state has to step in. Christians should hold themselves to a higher standard because we serve a higher authority, King Jesus.”