confidentiality agreements and power imbalances

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One of the many things that makes me uncomfortable with the way our laws work is the abundance and acceptance of confidentiality rules.

I’m thinking about things like clauses in employment contracts that prohibit the employee from talking with their coworkers about how much they earn. This allows employers to pay different wages for similar work and experience, with employees unable to complain because to do so would indicate they had broken the confidentiality agreement.

I’m thinking also about reading stories online about since Target has bought out Zellars and will be converting the stores to Target stores. Target has said it is not going to allow Zellars workers to keep their jobs at the new stores, they will have to apply for new jobs and if hired at Target none of their time worked at Zellars will count. When I made some very minor inquiries at our local store employees told me that they were under secrecy agreements and could not discuss it. (See Target Fairness website for what information is available.)

In Ontario conflicts between landlords and tenants go before the landlord-tenant board and are dealt with either through mediators or tribunal. Mediated results are confidential agreements between the two parties and can include confidentiality clauses limiting the amount the parties can reveal to others. If the complaint is against the landlord, one tenant may be able to get justice but the rest of the tenants are forbidden from being told that they too might be entitled to justice. Tenants might be told they cannot talk with their neighbours about certain topics – like that they are not supposed to discuss maintenance or building policy. Besides preventing effective organizing, this can take a toll on the tenants mental health. Tenants can end up fearing that they will accidentally divulge something they are not permitted to and they can be scared of asking friends and neighbours for help. (For example, if a tenant is forbidden from discussing maintenance issues with a neighbour they may feel they can not ask the neighbour for assistance when they need to move furniture to make way for maintenance work.) Why should landlords be able to restrict conversation between tenants?

The knowledge that there are these contracts bothers me. There may be times when they are needed and they may be advantageous to the people with the power to insert them into agreements, but they should not be considered socially acceptable. They are reminders to me that not every injustice is aired to public debate.

These are voluntary agreements, to the extent that people can choose not to work for employers who require confidentiality agreements, though it would be doubtful that social assistance or employment insurance offices would consider that a justifiable reason for turning down the employment. They can choose not to rent from landlords who insist upon them. They can choose to face the landlord tenant tribunals (which are generally open to the public) instead of engaging in mediation (which can involve confidentiality issues) though I frequently hear fears expressed that the landlord tenant tribunals are biased towards the landlords.

We live with power imbalances. We don’t always have many choices and often our choices are between two bad ones, shaped not just by our own previous decisions but by what society collectively allows as normal and acceptable. Should these type of restrictions on people’s speech be considered normal and acceptable?

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2 thoughts on “confidentiality agreements and power imbalances

  1. Hi Christy, you raise some important issues. Lately, big companies are becoming more emboldened to insert absurd clauses such as these into contracts for service or employment. These confidentiality clauses in the specific scenarios which you cite sound eerily akin to the kinds of repressive means crafted into law by a totalitarian regime in order to keep its people down. ;( P. S. I like your blog. 😉

    Jessica
    The Learning Metamorphosis

  2. Another great post! This is different than the US, but the principle is the same. It seems absurd to allow such clauses. Why the cloak of secrecy. Again, you have made me think about this and other issues. Keep on doing what you do!

    Paul R. Hewlett

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