Coming off a year where the silencing power of non-disclosure agreements (NDAs) dominated national press, two new studies released today underscore how the ongoing and pervasive use of silencing mechanisms in the workplace often drive long-term consequences for workers, including higher costs and lower win rates for employees in forced arbitration cases. The studies, Contracts That Bind: Untangling the Use of NDAs, Forced Arbitration and Other Restrictive Covenants in U.S. Labor Market and Forced to Settle: The Unseen Costs of Arbitration vs. Litigation, were published by Gretchen Carlson and Julie Roginsky’s nonprofit Lift Our Voices (LOV) and Penn State Associate Professor Mark David Gough.

Forced arbitration clauses and NDAs are legal mechanisms that can be used in the workplace to silence workers from reporting instances of discrimination. Combined, the Penn State reports surveyed nearly 2,000 participants, comprising active job seekers and employment law attorneys.

Key findings from the combined reports include:

• 45% of workers report being subject to NDAs.
• Black and Asian workers reported being subject to NDAs at higher rates than White workers.
• Women generally report being subject to restrictive covenants at slightly higher rates than men.
• 39% of workers report being subject to a forced arbitration clause.
• Employee win rates are 36% higher in cases that are litigated in the court system as opposed to forced employee arbitration cases carried out in a private forum.
• Employee plaintiffs receive significantly higher payouts through litigation than arbitration, challenging the notion that forced arbitration was designed to benefit lower-income employees.
• When it comes to perceptions of procedural justice, attorneys and employees perceive procedural justice in arbitration as less favorable, suggesting that litigation's formal structure and transparency foster greater confidence in fairness.
• The studies can be viewed in full here.

“These studies confirm what we’ve long known about the widespread use of workplace silencing mechanisms. The system is rigged against working people,” said Julie Roginsky, Co-Founder of Lift Our Voices. “These studies allow us to shine a light on how harmful silencing mechanisms like NDAs and forced arbitration for American workers. While we have made crucial progress in the past few years, these findings demonstrate that our work is far from done.”

As the leading organization advocating for new laws and policies that empower and protect every worker from toxic workplace behavior, LOV’s advocacy work has transformed survivors’ lives by eliminating silencing mechanisms for workers experiencing sexual misconduct. Since its founding in 2019, LOV has spearheaded two federal landmark laws – the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (2022), and the Speak Out Act (2022) – that eliminate silencing mechanisms for workers who’ve experienced harassment and sexual misconduct on the job. Building on these victories, LOV is continuing its fight to ensure that all workplaces are inclusive, respectful and safe for all employees.

“Not only do these studies confirm that silencing mechanisms continue to be widely used across the American workplace, they also show that these anti-worker policies disproportionately impact women and people of color, who are more likely to face discrimination,” said Gretchen Carlson, Co-Founder of Lift Our Voices. “The reality is that corporate America has long been minimizing the harmful impacts of NDAs and forced arbitrations. We will continue to work to correct this narrative by ensuring the public is informed of their reach and devastating consequences, and advocating for a future where all employees are able to seek justice and have their voices heard.”

These combined reports follow last month’s launch of Lift Our Voices’ LOV Where You Work Index, a first-of-its-kind corporate scoring system that will grade Russell 3000 companies on their use of NDAs and forced arbitration clauses in employment contracts. The scoring system will kick off later this month with a survey to Russell 3000 companies and public release of the inaugural scorecard later this year.

“These studies make clear that we desperately need additional safeguards for employees,” said Mark David Gough, report author and Associate Professor at Penn State. “Policymakers need to start taking real steps to enhance worker protections, including reconsidering the scope of forced arbitration clauses and NDAs in the workplace.”

About Lift Our Voices 
Lift Our Voices (LOV) was launched in December 2019 to create positive, systemic change in American workplaces through the eradication of nondisclosure agreements for toxic work issues and forced arbitration clauses. Created and launched by Gretchen Carlson and Julie Roginsky, LOV’s mission is to protect American workers by giving those in toxic work environments the freedom to speak freely about their workplace experiences and free them from the laws and business practices that prevent employees from publicly discussing toxic workplace conditions. For more information on Lift Our Voices, visit https://www.liftourvoices.org/ and visit their Facebook and Twitter pages.