B.C. facing calls to restrict non-disclosure agreements in the workplace

A British Columbia non-profit law firm is calling on the province to ban workplace non-disclosure agreements (NDAs) in cases of gender-based violence. 

A report released this week by the Community Legal Assistance Society (CLAS) said preventing people from speaking out about cases of violence or harassment can impact their job security and their mental health.  

Jennifer Khor, a lawyer and leader of the CLAS’s Speak Out Project, said the organization often helps clients who were asked to sign restrictive NDAs after reporting workplace sexual harassment.

“Some clients come back to us who signed one many years ago talking about how it’s really harmed them and prevented them from moving on, really hung over their head, not allowed them to process what’s happened or, depending on the NDA, not allowed them to talk to therapists or their family,” said Khor.  

She said it creates more barriers in the workplace for women, LGBTQ+ people, racialized and Indigenous people and people with disabilities, who are more often the targets of workplace harassment.  

A 2020 Statistics Canada study found that 25 per cent of women and 17 per cent of men reported experiencing sexual misconduct in the workplace in the previous year. 

The CLAS is calling on the province to enact legislation that regulates the use of NDAs in situations of gender-based violence.  

The report said the legislation should ensure that an NDA is invalid if a person is pressured into signing it. It said NDAs should not prevent people from reporting violence to police or talking about it with health providers and family supports.  

Khor said while there might be legitimate concerns for employers about confidentiality of employees, an NDA may not be the solution.  

“I think you can agree to a confidentiality clause that protects the identities of individuals but doesn’t prevent someone from being able to talk about what happened to them to their other areas of support,” said Khor.  

“The challenge is that people don’t know that these are things that they can negotiate,” she said. 

WorkSafeBC has resources for employers and workers to address workplace bullying and harassment, but Khor said they don’t go far enough to address issues of gender-based violence.  

Khor said more than 30 jurisdictions around the world have some kind of regulations on NDAs. Prince Edward Island is the only Canadian jurisdiction with standalone legislation addressing NDAs.

The B.C. branch of the Canadian Bar Association has also previously written to Attorney General Niki Sharma to urge the regulation on NDAs. 

“CBABC is concerned about the widespread misuse of NDAs, which can silence survivors of harassment or discrimination, and whistleblowers,” it said in an April 2024 letter.   

Sharma indicated at the time that the province was studying the issue, as well as considering options outside of legislation to discourage inappropriate use of NDAs. 

Sharma’s ministry said in an emailed statement to Vista News on Friday that work is ongoing.

“The Ministry of Attorney General is actively considering legislative options that consider these complex dynamics, while also monitoring developments on this issue in other jurisdictions to see what other measures might help better protect and support survivors of sexual and other forms of harassment, abuse and discrimination.”

The ministry said it expects to share an update this fall.