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As the orchestra world continues to wrestle with issues of sexual misconduct, the use of non-disclosure agreements (NDAs) in settlements has received renewed attention. The recent case of Esther Hwang, a substitute violinist with the Vancouver Symphony Orchestra (VSO), illustrates the problem\u2014and suggests a path forward.<\/p>\n
Ms. Hwang\u2019s story appeared in a December 2025 article in The Globe and Mail<\/a>. In 2019, Hwang had lodged a complaint to the VSO, describing an alleged rape and sexual assault by a longtime principal musician of the orchestra at a post-concert party. On one hand, her complaint led to the desired result: the accused musician left the orchestra, and Hwang received a monetary settlement. But on the other hand, the settlement was extremely modest\u2014roughly $7,100 CAD that mostly reimbursed her for counseling expenses\u2014and it came with strings attached. She had to sign an NDA.\u00a0<\/span><\/p>\n Over the next few years, Ms. Hwang saw her work with the VSO dwindle and then cease altogether. At the same time, rumors circulated, including that she had had a consensual affair with the alleged perpetrator. But because of the NDA, she could say nothing. She asked the VSO to release her from the NDA; the VSO refused. The VSO also denied that her loss of work was in retaliation for her complaint, despite what seems a rather obvious cause-and-effect. After she broke the NDA by speaking to The Globe and Mail, the VSO\u2019s counsel sent her a cease-and-desist letter, invoking the NDA, threatening to sue her, and complaining that the VSO\u2014yes, the VSO\u2014had \u201csuffered, and will continue to suffer, significant harm\u201d from her decision to go public with her account.<\/p>\n The resulting public outcry was immediate and furious. Within weeks, the VSO publicly withdrew the threat of legal action and announced that it would no longer include confidentiality provisions in agreements involving sexual misconduct, unless a one-way confidentiality agreement is specifically requested by the complainant. (A one-way agreement is one where only the employer, not the complainant, is bound by confidentiality.)<\/p>\n The case represents what critics of NDAs have long decried: a settlement of modest value, extracted at a moment of maximum vulnerability from a musician on the wrong end of a power imbalance with no job security, in exchange for not only a release of claims but permanent silence; and when the victim chose to break her silence in the face of what she viewed as clear retaliation, the NDA was weaponized against her.<\/p>\n Proponents of NDAs include (of course) the employers who primarily benefit from them. But an argument has historically been made on behalf of victims as well, arguing that an NDA provides a powerful incentive for employers to settle a case, which in turn gives victims significant negotiating leverage. Take that away, the argument goes, and employers will pay even more modest sums or may not settle at all. Victims may also desire confidentiality: they don\u2019t want the worst thing that ever happened to them laid bare for the world to see.<\/p>\n While Ms. Hwang\u2019s case was Canadian, lawmakers at the state and federal level in the United States have wrestled with this in the wake of the #MeToo movement. At this point, the legal landscape is a patchwork of laws and is still very much in flux.<\/p>\n Federal Law: Less than Meets the Eye<\/b><\/p>\n Congress has twice acted on this issue in the #MeToo era. Neither statute really lives up to the hype they received upon enactment, however.<\/p>\n Passed in 2022, the Speak Out Act provides that in a sexual assault or sexual harassment dispute, no nondisclosure or nondisparagement clause agreed to before the dispute arises is judicially enforceable. That effectively kills the kind of boilerplate confidentiality clause buried in an employment agreement or a handbook that employers often require new hires to sign on their first day of work.<\/p>\n Also in 2022, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA)<\/a> amended the Federal Arbitration Act to allow a person to bring a statutory claim grounded in sexual misconduct (e.g., a Title VII claim of sexual harassment) in court even if they are subject to a mandatory private-arbitration agreement.<\/p>\n Neither statute does much for orchestral musicians. The Speak Out Act covers only NDAs that an employee signs before the dispute arises. Most NDAs are presented post-dispute, after a complaint is made, and the Speak Out Act does nothing about that. (Orchestra musicians also don\u2019t typically sign any kind of confidentiality agreement when hired.) The EFAA permits someone to sue instead of being forced into private arbitration; but in a unionized workplace, statutory claims like Title VII are very rarely subject to mandatory arbitration anyway.<\/p>\n The NLRB Option (for Now)<\/b><\/p>\n Section 7 of the National Labor Relations Act (NLRA) establishes the concept of protected concerted activity\u2014broadly speaking, the right of employees to speak out regarding workplace issues. In McLaren Macomb (372 NLRB No. 58, 2023<\/a>), the National Labor Relations Board (NLRB), the regulatory agency charged with enforcing the NLRA, held that merely proffering a severance agreement with broad confidentiality and nondisparagement provisions violates the NLRA, because such clauses tend to restrain employees from engaging in speech protected under Section 7. This gave workers and unions a powerful weapon not only against NDAs in sexual misconduct cases, but against confidentiality clauses in employment agreements generally\u2014including, for example, the standard clauses in overscale agreements about keeping the terms confidential.<\/p>\n Unfortunately, McLaren Macomb was a decision from the Biden NLRB and is therefore on the chopping block in the Trump era. The current NLRB and general counsel have made it clear that they will revisit McLaren Macomb (meaning it will likely be overturned). But for now, it remains the law. Employers presenting sweeping NDAs to employees are still vulnerable to an unfair labor practice charge, at least until the new NLRB acts.<\/p>\n States: Filling in the Gaps<\/b><\/p>\n With Congress having addressed only the pre-dispute use of NDAs and the Trump NLRB likely to take a pro-employer stance, the real regulation of NDAs in sexual misconduct settlement has been left to the states. Roughly twenty have enacted legislation. While a full survey is beyond the scope of this article, some representative examples are discussed below.<\/p>\n 1.\u00a0 <\/span>Flat-Out Bans<\/b><\/p>\n New Jersey\u2019s approach is emblematic of a flat ban on NDAs. In 2019, New Jersey amended its workplace discrimination laws to provide that any clause in a settlement agreement that would operate to conceal the details of a discrimination, retaliation, or harassment claim \u201cshall be deemed against public policy and unenforceable against a current or former employee.\u201d (N.J.S.A. 10:5-12.8<\/a>) Moreover, if the employer tries to enforce such a clause, the employee can sue them and recover court costs and attorneys\u2019 fees.<\/p>\n Washington\u2019s \u201cSilenced No More Act,\u201d (RCW 49.44.211<\/a>) passed in 2022, goes even further. It prohibits NDAs that prevent disclosure of information regarding any kind of workplace harassment, discrimination, sexual misconduct, or even wage and hour violations. An employer who attempts to enforce such a confidentiality provision is subject to statutory damages of $10,000 plus costs and attorneys\u2019 fees. (Had Ms. Hwang lived in the \u201cother\u201d Vancouver, the letter she received from VSO counsel would have cost the VSO a cool ten grand to start with.)<\/p>\n Under this approach, there is no mechanism for confidentiality at all. The employer can never obtain it, even if the employee wants to give it. (The one thing that can stay confidential is the settlement amount: in most states, that can stay secret.)<\/p>\n 2.\u00a0 <\/span>Bans with a Narrow \u201cIdentity\u201d Exception\u00a0<\/span><\/b><\/p>\n California\u2019s STAND Act (SB 820<\/a>), passed in 2018, provides that a settlement agreement resolving a claim of sexual assault, sexual harassment, or sex discrimination may not contain provisions that would stop the complainant from disclosing factual information underlying the claim. An agreement can contain a provision that shields the identity of the complainant and all facts that could lead to the discovery of their identity\u2014but only if the complainant requests it.\u00a0<\/span><\/p>\n In 2021, the California legislature expanded the prohibitions on NDAs with the Silenced No More Act (SB 331<\/a>), which closed a loophole where employers might try to recharacterize the misconduct as \u201cinterpersonal conflicts\u201d or \u201cpersonality issues\u201d instead of sexual misconduct. The new law extended the STAND Act\u2019s restrictions to settlements of all claims of harassment or discrimination, not just those rooted in sexual misconduct.<\/p>\n The \u201cidentity\u201d exception is subtle but important: an NDA cannot prohibit disclosure of the underlying facts of the misconduct, even if the claimant wants it; the only thing the claimant can elect is a narrower shield over their own identity and facts that could lead to their identification. The \u201cwhat happened\u201d cannot be kept confidential; the \u201cwho it happened to\u201d is the only thing that can be protected.<\/p>\n 3.\u00a0 <\/span>Bans with a Broader \u201cClaimant\u2019s Choice\u201d Exception\u00a0<\/span><\/b><\/p>\n New York and Illinois provide the models for this approach. New York (Gen. Oblig. Law \u00a7 5-336<\/a>) does not ban NDAs outright; but it permits them only where the complainant wants it. Specifically, when the settlement involves a claim of unlawful discrimination, harassment, or retaliation, nothing can \u201cprevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant\u2019s preference.\u201d\u00a0<\/span><\/p>\n That preference must be memorialized in a separate writing, with a 21-day consideration period and a 7-day revocation window. Further, even if the complainant chooses an NDA, it cannot contain provisions that will result in the payment of liquidated damages if the complainant violates it, or would require the re-payment of the settlement amount.<\/p>\n