Rep. Carolyn B. Maloney, Chairwoman of the Committee on Oversight and Reform, is introducing legislation to rein in the abuse of non-disclosure, confidentiality, and non-disparagement agreements in the workplace and create new protections for employees whose professional images are used for illegitimate purposes. The bills are the result of the Committee’s ongoing investigation into sexual harassment and abuse at the Washington Commanders and how allegations of workplace misconduct were handled by the National Football League (NFL).
Per the press release: “Despite the Commanders’ and the NFL’s enormous public platforms, they failed to adhere to a higher standard and serve as an examples for workplaces across the country. Our investigation has revealed significant gaps in existing federal law that allow employers to use legal agreements to prevent employees from speaking out about unlawful behavior in their workplaces and allow executives to use professional images for lewd and inappropriate purposes,” said Chairwoman Maloney. “The two bills introduced today would establish standards for employers to protect workers and encourage them to foster workplace cultures that aim to prevent—rather than conceal—workplace misconduct. I strongly believe that those responsible for the culture of harassment and abuse at the Washington Commanders must be held accountable, and that as lawmakers, we must to use our legislative powers to protect other employees from this serious misconduct.”
In 2018, following the NFL’s investigation into allegations of sexual harassment and discrimination against the then-owner of the Carolina Panthers, Jerry Richardson, the League failed to implement recommendations by an independent investigator to prohibit the use of non-disclosure agreements that “limit reporting of potential violations or cooperation in League investigations under the Personal Conduct Policy.”
As a result, NFL teams such as the Washington Commanders can still use NDAs to evade accountability and silence employees who have experienced or witnessed harassment and discrimination in the workplace. According to the National Women’s Law Center, more than one-third of the U.S. workforce is bound by some form of nondisclosure agreement.
The Accountability for Workplace Misconduct Act would safeguard against the abuse of NDAs by prohibiting employers from using these agreements to limit, prevent, or interfere with an employee’s ability to disclose harassment, discrimination, or retaliation to government agencies or Congress. The legislation would also set uniform requirements for employers’ handling of workplace investigations and would improve awareness and transparency of the process for employees.
The Professional Images Protection Act would guard against employer abuse of employee images and ensure that employees have a say in how and when their images are used for business purposes. The legislation would require employers to obtain consent from employees prior to taking, collecting, disseminating, or using their professional images. Employers would also be prohibited from collecting, disseminating, or using professional images for illegitimate purposes. Employers that violate the notice and consent requirement under the law would be subject to fines.
During a Committee roundtable with former Washington Commanders employees in February 2022, Melanie Coburn, a former marketing executive and cheerleader, explained that during calendar photoshoots, production staff secretly captured footage of the cheerleaders’ naked body parts at the behest of team owner Daniel Snyder and created “essentially a soft-porn video, soundtracked to Dan Snyder’s favorite bands.” Ms. Coburn told Committee Members that the women featured in these videos are traumatized. Like many employees across the country, the cheerleaders had signed agreements with the Commanders that authorized the team to use their images for any purpose at any time—even after the separation of their employment. While many states have laws that restrict how employers may use employees’ images and require consent before the images are used for commercial purposes, there are no federal laws to provide all employees strong and uniform levels of protection.