There is a lot of truth to the saying that “it takes years to build a reputation and only seconds to destroy it.” Yet, some bad reputations are well deserved. Roger Ailes and Bill O’Reilly, both formerly of Fox News, Harvey Weinstein, formerly of The Weinstein Company (TWC), and Roy Price, formerly of Amazon Studios, are a few examples. All were taken down by allegations of sexual harassment and/or sexual assault. Now, former President George H. W. Bush and Kevin Spacey have been added to the list. A company’s reputation is also easily tarnished. Companies are regularly ranked based on the public’s perception of their vision and leadership, financial performance and social responsibility, as well as their workplace environments. Law firms are no different. Some are known as sweat shops and others as “ol’ boys’ clubs.”

Companies try to protect their reputations from executives who have “gone wild” by including moral turpitude clauses as a basis to terminate executives for cause under their employment agreements. Similarly, in the context of employment disputes, companies try to protect themselves through the use of nondisclosure, nondisparagement and confidentiality provisions in settlement agreements. Although confidentiality policies that bar employees from discussing sexual harassment or other workplace misconduct are generally held to violate Section 7 of the National Labor Relations Act, which prohibits employers from interfering with employees’ rights “to organize, to form, join, or assist a labor organization, to bargain collectively, to engage in other concerted activities for mutual aid or protection,” confidentiality clauses in settlement agreements are permitted. On Aug. 25, 2016,  the National Labor Relations Board (NLRB) held, in S. Freeman & Sons, 364 NLRB No. 82, that “an employer can require an employee to keep confidential the terms of a settlement agreement in exchange for reinstatement” to his former position. In doing so, the NLRB noted that it has long favored “private, amicable resolution of labor disputes, whenever possible,” and “that an employer may condition a settlement on an employee’s waiver of Section 7 rights if the waiver is narrowly tailored to the facts giving rise to the settlement and the employee receives some benefit in return for the waiver.”