Media Unions Are Challenging the Use of NDAs

Media Unions Are Challenging the Use of NDAs

Media Unions Are Challenging the Use of NDAs

Workers in the industry argue that nondisclosure agreements are a matter of workplace safety, making them “mandatory subjects of bargaining.”


On May 19, members of the Daily Beast union set a new standard for the media industry by ratifying a contract that eliminates the use of nondisclosure agreements (NDAs) in cases of workplace harassment. The provision is the first of its kind to be formally included in a collective bargaining agreement. This comes after years of grassroots organizing by the #MeToo movement, which was catalyzed by media reports breaking a culture of silence surrounding sexual harassment and assault against women.

In mid-June, members of the New Yorker union announced the inclusion of a similar provision, banning NDAs in cases of both harassment and discrimination, in a tentative agreement on its first union contract after years of tense negotiations with the magazine’s parent company, Condé Nast. According to members of the NewsGuild, the nation’s largest union of communications employees, this provision has been years in the making and is well on its way to becoming a new standard of employment across the media industry.

While the use of NDAs is not uncommon, organizers argue that they inhibit both workplace safety and journalistic practice. “It gets in the way of reporting on the truth and holding powerful people accountable,” says the Daily Beast union’s unit chair, Kate Briquelet, a senior reporter who has written extensively on Jeffrey Epstein, Ghislaine Maxwell, Donald Trump, Alan Dershowitz, Michael Cohen, Stormy Daniels, and more. “The changes that the union is creating affect everybody, and make it a better newsroom for all of us, regardless of whether you’re a union member,” Briquelet added.

Susan DeCarava, president of the NewsGuild of New York, says the proposal was first made at The New Yorker in November 2019 because of the Pultizer Prize–winning exposé Ronan Farrow wrote for the magazine detailing Weinstein’s history of sexual abuse.

“It was clear from his reporting, as well as from the reporting of some of our other members at The New York Times, Jodi Kantor and Megan Twohey, how central NDAs were in both shielding harassers from the consequences of their actions and continuing to foster unsafe workplaces,” DeCarava says.

Since then, the NDA ban has been brought to the bargaining table of a number of other shops within the New York local of the NewsGuild, which represents nearly 4,000 media workers in over 40 companies including The Daily Beast, Condé Nast, The New York Times, Reuters, Foreign Policy, NBC News, The New Republic, New York magazine, the New York Daily News, and more. (The Nation’s staff is also represented by The NewsGuild of New York).

“In all of the places where we’re currently bargaining, it has either been tentatively agreed to or it’s on the table and about to be,” says DeCarava.

The provision has also been signed into union contracts at Ars Technica, Pitchfork, Quartz, and the Ziff Davis Creators Guild, which represents editorial staff at AskMen, Geek, Mashable, and PCMag. Tentative agreements have been reached at New York magazine and Buzzfeed, and the ban is on the bargaining table at Reuters and Consumer Reports.

On June 23, the Writers Guild of America, East (WGAE), which represents over 6,000 media workers, followed in the NewsGuild’s footsteps and released a digital toolkit to support similar NDA bans. Member unions at Hearst Magazines, The Intercept, Bustle, HuffPost, and Gizmodo took part in WGAE’s #NoNDAs Day of Action on Twitter, hinting at possible newsrooms where this provision might show up next.

In addition to setting new precedents, both The Daily Beast and The New Yorker successfully fought for contract language that releases people from a number of past NDAs.

By categorizing sexual harassment and assault as a matter of “workplace safety,” the Guild was able to fit the NDA ban under the rubric of “mandatory subjects of bargaining”—employment conditions that unions and management have a duty to bargain over in good faith under the National Labor Relations Act of 1935.

Since The Daily Beast union’s announcement of its NDA ban, Briquelet says she often hears from members of other bargaining units who have taken inspiration from the new policy.

“Banning NDAs is going to protect our most vulnerable union members and hold management accountable so people don’t have fear of legal action from the company when they speak out about things that happened to them,” Briquelet says.

This move comes as the NewsGuild has increasingly taken an aggressive approach to organizing in recent years amid a media ecosystem characterized by low wages, mass layoffs, and corporate acquisitions. In a 2019 article for Nieman Reports, retired New York Times labor reporter Steven Greenhouse called media unionization “one of the bright spots in a labor movement that has been declining for decades.”

Since the early 2010s, the NewsGuild has activated a number of young reporters in volatile digital media outlets in addition to a number of legacy papers that had resisted prior attempts to form a union. Unionized outlets over this period include dozens of digital media companies and a handful of legacy shops, such as the Chicago Tribune, the Los Angeles Times, The New Republic, and The New Yorker.

The reverberations of this new surge in membership have not come without internal and external disputes. Under the umbrella of Condé Nast, a media conglomerate that publishes Vogue, GQ, and Vanity Fair, among others, editorial staff have formed unions at The New Yorker, Pitchfork, and Ars Technica. These three shops narrowly avoided a strike in mid-June after years of negotiations on issues of higher wages, affordable health care, and an appropriate work-life balance had come to a stalemate.

In February 2020, Condé Nast announced that the company had independently decided to eliminate the use of NDAs related to harassment and discrimination on a case-by-case basis after reflecting on reports coming from its publications. Members of the New Yorker union pushed back against management on social media, pointing out that they had met at the bargaining table on 14 separate occasions to no avail before the company publicly announced the new policy three months later.

“If Condé is truly committed to this important issue of workplace safety, it will accept our bargaining proposals and contractually commit itself to the elimination of this dangerous practice,” the union wrote on Twitter.

Internally, controversy over a temporary dues increase at the NewsGuild erupted with the publication of an article in Vanity Fair—which is owned by Condé Nast—just as negotiations between management and The New Yorker’s union were escalating towards a possible strike. The article discusses a budget deficit the New York NewsGuild has run in order to pay for the union’s membership expansion, which resulted in pushback from its largest units of dues-paying members at The New York Times and Reuters.

“The Guild expects some major organizing fights ahead, including a strike at Condé Nast, and they want enough money to keep up the fight,” New York Times reporter Nicholas Confessore is said to have e-mailed to his colleagues at the Times. “I think this is about asking current members to underwrite the costs of growing the Guild,” he added.

Another unnamed source told Vanity Fair, “The Guild basically wants Times employees to underwrite the revolution.”

The NewsGuild proposal in question temporarily raised membership dues from 1.3846 percent to 1.75 percent (or 0.3654 percent points) and permanently eliminated a dues cap on income over $140,140 a year, essentially pitting well-paid journalists at legacy publications against the rest of a vulnerable industry.

“It’s a vocal minority,” says New Yorker Unit Chair Natalie Meade. “That’s unfortunate, because the guild needs to grow in order to become stronger.”

In early June, the Times sent a letter, signed by over 100 staffers, to the Guild urging members to vote “no” on the dues increase. The letter noted that new members do not start paying dues until their first contract.

“For now, the Guild’s existing dues-paying members—you—are paying for this expansion effort with no clear projections for how much it will cost nor when new dues will begin to sluice into our coffers,” the Times letter said. “We will not leave any organized shop behind. We take our obligations very seriously. But we need to slow down,” the e-mail concluded.

At this time, management at The New York Times has refused to settle on a company-wide ban on NDAs, opting instead for language that eliminates NDAs exclusively for union employees. The Guild argues that the use of NDAs anywhere in the workplace poses a danger to all workers, and therefore has not accepted management’s proposal.

A spokesperson for the Times responded to The Nation’s request for comment with the following e-mail: “​​As we told the Guild, the Company’s existing policy does not ask current or former employees to sign NDAs that would prohibit them from discussing discrimination or harassment claims against the Company. We look forward to continuing to discuss bargaining proposals at the bargaining table.”

The spokesperson declined to confirm or deny the existence of NDAs signed by current or former employees when the question was posed in a follow-up e-mail.

Asked about why the New Yorker contract took so long, Meade says, “Their bargaining strategy was one of trying to outlast us.” But the union had no intention of conceding. Meade, who fact-checked Farrow’s article on NDAs for The New Yorker in 2017, adds that a significant amount of time was also spent on bargaining for non-economic proposals, such as the NDA ban, before getting to the money. “We want to try to bargain according to our principles.”

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