Sorry, dense this morning. I don’t understand the question. Do you mean “how much of this is to suppress casual gut-spilling to people with hidden cameras who are not who they claim to be?” Hard to say. I can see how signing a piece of paper at the conclusion of a stern talking to might fix the need to maintain confidentiality on things that actually need to be confidential better than just the talking to alone.
But giving them a thousand bucks to sign an actual enforceable confidentiality agreement would do that better.
The law varies from state to state, but I don’t think “the experience of being allowed to provide free services to me” would hold up as consideration in NC.
I just read the non disclosure agreements published by VOX and have to ask what should I find objectionable? Frankly they are very generic and don’t ask interns to do anything improper or illegal.
I seem to recall that permanent internships were routine in your region until disagreements over the matter turned ugly. Perhaps your legislators will prevail in their persistent attempts to restore the freedom to live as a permanent intern.
There is a large and well-developed body of case law in every state, North Carolina included, about this. It’s always risky trying to generalize across states, even when there’s a widely adoped uniform act, but in general that case law derives from a general suspicion that NDA’s are obtained through coercion or trickery in an attempt to render employees unemployable by competitors and bind them into compensated quasi-serfdom.
The form of the document itself is unambiguously that of an unenforceable promise and a court analyzing it in most states isn’t going to look outside the four corners of the document to try to seek out consideration the document itself doesn’t reference. Nor are courts generally going to kowtow to another branch of government in something like this.
If they do look outside the four corners, most courts will closely scrutinize whether the agreement was known to be a condition of employment and part of what was being offered in return for valuable consideration or, if not, whether meaningful consideration was given. NDA’s and non-competes are a rare instance in which courts actually will look at the adequacy of consideration in determining enforceability, contrary to the general principle that courts don’t do that. Note too that the document itself doesn’t even purport to contain language indicating an exchange of consideration.
All things being equal, partisanship being presumed not to shape outcomes and assuming the law gets applied rather than distorted to reach a desired result, of course.
Have you read these particular NDA forms? There is nothing in them that would give any judge anywhere heartburn. Vox and TPM are just experiencing a slow news day.
You don’t want people working in your office who have access to confidential information leaking to the press. Lawyers who reviewed the actual documents for VOX quibbled that they don’t include language excluding illegal activities and that they don’t indicate the intern will receive a copy. VOX doesn’t say its lawyers say they are unenforceable. I think it is fair to say that if an intern reports discrimination, harassment or other illegal activities he or she has suffered or observed to the appropriate authorities no NDA is going to be effective.
I’d agree that that alone would be insufficient, but having “congressional intern for Rep./Sen. So-and-so” on the resume is a pretty nice thing for kids applying to college or grad school or looking to stand out among the application pool for gainful employment (particularly places like big law firms that prey on such connections). Maybe some courts would dismiss it as negligible, but I have trouble considering it to be so myself.
I did read the one on the Vox site, and I beg to differ.
No recital of consideration, no consideration in fact. Gratuitous promises are not enforceable. They’re unenforceable regardless of whether the terms are reasonable.
And how, exactly are you going to enforce it?
Who is the injured party with the standing to enforce it? Is it a private contract between the member of Congress and the intern regarding the intern and the Congressman’s performance of public duties? How does that work? Or is the counter party Congress as a whole or the GAO? What’s the remedy?
TRO and preliminary injunction? Can you say “prior restraint?” Money damages? Owed to who? What’s the measure? What’s the point? It’s a kid.
And with regard to reasonablenes, what’s reasonable if you’re a sales rep or a microchip engineer isn’t necessarily reasonable if you’re working for an elected official for free.
I learned in my first contracts class about 45 years ago that you don’t have to recite consideration for a court to find it. A real promise is made. You will get a resume padding summer job for your promise not to repeat confidential information. Relief doesn’t need to be stated in a document creating a contract. I would imagine the congress member asks for appropriate relief. The Intern might reasonably expect to be fired. The injured party would be the congress member.
The purpose of these particular NDAs is to discourage people from blabbing what they learn in the office to members of the press and others. Most of the work done in a congresscritter’s office involves constituent services. Those constituents want to be able to trust their congresscritter. If Bob the Intern blabs that a constituent has asked for help it is a safe bet the constituent isn’t going to be happy. Unless what he has asked for is illegal, I think the congresscritter has a right to be upset with the intern. Bob shouldn’t have a job the next day.
Would I recommend you to sign either NDA? No. Each needs a lot of work. Are they enforceable? I bet you could find a lot of case law to support either of them. Of course, every jurisdiction is different, but these documents just don’t appear unenforceable.
You really need to understand what you are trying to accomplish with any contract. Here the congress members are trying to impress interns with the importance of not leaking. I seriously doubt if Bob the Intern leaks his congresscritter is going to do much more than fire him. Bob the Intern is going to end up selling real estate in his daddy’s business instead of becoming a powerful DC insider.
Notwithstanding what we learned in first year contracts, courts routinely scrutinize the adequacy off consideration in the NDA and non-compete contexts. They don’t call it that, but that’s what they do, even while citing cases saying they don’t.
This isn’t a contract. There isn’t even any indication that signing it is a condition of getting the gig.
And in any case, you don’t need an NDA to fire an at-will unpaid intern. Nor, indeed should an unpaid intern ever be exposed to anything that makes a real NDA necessary.
Courts do scrutinize the adequacy of consideration, but you haven’t cited anything that would lead anyone to think there isn’t consideration in this case. Bob the Intern promises not to blab and do a few other things, in exchange he gets a wonderful resume building job. That sir is a contract. The NDA recites some of the terms. All the rest is a matter of proof.
IMO what this is is a policy, not a contract, one you make the “employee” sign off on to bring it to their attention because you really don’t want them to violate it, but not because it’s a term of the employment. Because at-will employment for no pay or benefits has no terms.
You’re not dense, I am - that wasn’t suppose to be in response to your post, which is why I shouldn’t even bother trying to multitask. But yeah, the hidden camera angle was my first thought because I’m paranoid.
