NDAs Lost: Silence Costs More Than Silence Saves

By Harvey Specter Jr. | Law, Business & Power Correspondent

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Seven figures in severance. A non-disclosure agreement signed under pressure, in a lawyer's office, with a pen handed across the table before the ink on the termination letter was dry. The employee signs. They always sign. Because in that room, in that moment, the power imbalance is total — and the other side knows it.

That calculation is changing. Not slowly. Fast.

The *Silenced No More Act* lawsuits making their way through American courts right now are doing something that most employment legislation never manages: they are making the weapon visible. Employers across multiple jurisdictions are being accused of drafting non-disclosure and non-disparagement agreements so broad they effectively gag workers from speaking about illegal conduct — discrimination, harassment, wage theft — not just proprietary business information. The distinction matters enormously. An NDA that protects trade secrets is legitimate commercial law. An NDA designed to bury a workplace harm behind language dense enough to confuse a first-year associate is a different instrument entirely. Courts are beginning to call it what it is.

I sat with a client once — years before the suits, back when I was learning the game from the other side of the table — who had signed one of these things. She'd been handed four pages of settlement terms, a cheque, and the quiet suggestion that her career depended on her discretion. She signed. She spent three years believing she couldn't tell her own doctor what had happened to her because the NDA said *any third party*. That is not a drafting error. That is a drafting choice.

The enforceability question is where it gets sharp. In Malta and across the EU, non-disclosure clauses in employment settlements operate under a different legal architecture than their American counterparts, but the pressure points are identical. Article 47 of the EU Charter of Fundamental Rights guarantees the right to an effective remedy. A contract clause that prevents a worker from reporting illegal conduct to a regulator — the Malta Employment and Industrial Tribunal, the Information and Data Protection Commissioner, or any competent authority — is not merely unenforceable. It is void. It always was. Most employees sign it anyway because no one tells them that before they sign.

This is the unwritten side of the contract. The side that matters more than the written side.

The same dynamic is playing out in a different arena with the FanDuel and DraftKings litigation in Philadelphia, where operators are asking a court to dismiss a lawsuit alleging they exploited a customer's addiction through VIP incentives and promotional offers. Strip away the industry specifics and the legal question underneath is one employment lawyers have been arguing for a decade: at what point does a commercial relationship — employer to employee, operator to consumer — become a power structure that the law will not allow one party to exploit unilaterally? The answer, increasingly, is earlier than the exploiting party assumed.

New Zealand's new advertising guidance for the sector makes the same point from a regulatory angle: no appeals to luck, no fate, no ritual, no personal endorsements designed to normalise compulsive behaviour. The guidance is not moralistic. It is structural. When the law starts defining what a message *implies*, not just what it *says*, the drafters of these agreements — employment NDAs, settlement terms, VIP incentive schemes — are playing a much harder game.

The practical throughline is this: a clause that silences a person about illegal conduct is not a contract. It is an attempt to privatise a public harm. Courts on both sides of the Atlantic are becoming less patient with the attempt.

For anyone in Malta sitting on a signed NDA they were pressured to accept — particularly one signed in connection with a workplace complaint — know that the clause preventing you from speaking to a regulatory authority is almost certainly unenforceable under Maltese employment law and EU fundamental rights frameworks. You don't need to challenge the entire agreement to exercise that specific freedom. See the employment guide for the framework that applies before you decide anything.

The move you make before anyone files anything: If you have signed an NDA in a workplace settlement and believe it covers illegal conduct, request a written opinion from a lawyer on one specific question only — whether the clause preventing regulatory disclosure is enforceable. Not the whole document. One clause. It costs an hour of legal fees and it may cost the other side everything they thought they bought.

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*Harvey Specter Jr. is Law, Business & Power