If you wanted to work for Leonardo DiCaprio’s company Greenhour Corp. a few years ago, you would have had to sign a document crucial to the Oscar winner’s “personal safety, well being and business.”
Prospective workers were asked to consent to confidentiality agreements that not only prevented them from disclosing private information about the actor, but also a long list of “offensive/inappropriate material” they may be exposed to in the development of films and other projects.
What’s more, a copy of the agreement reviewed by The Times appears to demand that workers give up their rights to sue DiCaprio or Greenhour over a wide variety of claims, including harassment, invasion of privacy and infliction of emotional distress — “whether or not in connection with the development” of DiCaprio-related projects.
That’s just one example of the terms of Hollywood confidentiality and nondisclosure agreements, documents that aim to protect personal or corporate information and have come under the spotlight since the Harvey Weinstein scandal erupted early this month.While such agreements were reportedly used in settlements between Weinstein and women who accused the powerful producer of sexual harassment, nondisclosure agreements also are a standard part of getting many Hollywood jobs.
The agreements, commonly referred to as NDAs, also vary widely from company to company, differing in how they define confidential information, in how much they demand workers pay for blabbing and in the degree to which they block — or purport to block — workers from taking legal action.
For instance, a years-old agreement for the production company behind business reality show “Shark Tank” identifies confidential information as information directly related to the show, such as the names of participants, the participants’ business ideas and the outcomes of episodes, according to a copy of the agreement reviewed by The Times.
The confidentiality agreement for contractors working for DiCaprio and Greenhour, on the other hand, says a much wider class of information is off limits.
Confidential information, according to that document, includes information about the actor, his family and friends, his businesses and even “the existence of the contractor’s business and/or personal relationship with DiCaprio.” The document goes on to say a long list of “offensive/inappropriate material” is also confidential information.
It states that contractors on a project “may acquire information or material of an explicit, graphic, offensive, sexual and/or inappropriate nature,” and be in situations where “as part of the creative process, conversations, jokes, banter and behavior may contain explicit references to sex, gender, race, sexual orientation, violence and other protected categories.”
Another provision in the agreement appears to demand that workers give up their rights to sue DiCaprio or related companies. The document requires contractors, however, to report to a supervisor if they feel harassed or threatened.
Wayne Outten, a New York employment lawyer who reviewed the language of the agreement for The Times, said that employers cannot block workers from suing.
“The scope of this is just wildly overbroad and I don’t believe it would be enforceable,” said Outten, a cofounder of the nonprofit Workplace Fairness. “It’s overreaching. I can’t imagine any court would enforce this.”
But David Krause-Leemon, a Sherman Oaks litigator who also reviewed the language, called terms of the agreement “pretty standard” for Hollywood, though he also said it appears to be written in a way that would make workers believe — erroneously — they could not sue.
“It’s meant to discourage” potential suits, he said.
A Greenhour Corp. representative declined to comment but did not dispute the authenticity of the document.
A freelance technician called the DiCaprio agreement “ominous” because it appeared to shield DiCaprio from lawsuits or other action stemming from inappropriate behavior.
“I found it so offensive that I turned down the job and did not sign the agreement,” said the technician, who spoke on the condition of anonymity because, like many in Hollywood, he fears he would lose employment opportunities if he spoke out. “I’m very much against NDAs. They’ve gotten increasingly oppressive.”
Another document reviewed by The Times, from Beverly Hills’ United Talent Agency, also warns that workers may be confronted with “conduct and speech that openly and explicitly relates to sex.” That document, though, does not suggest that workers cannot take legal action.
Outten said that kind of disclaimer could be a reaction to a 1999 sexual harassment lawsuit filed against
Warner Bros.Television by a former writers’ assistant on the sitcom “Friends.” The assistant alleged that the “Friends” writers’ room was filled with coarse and graphic sexual banter.
The California Supreme Court
ultimately dismissed the case, finding that the behavior at issue could reasonably be found in a "creative workplace" for a show that sometimes explored sexual themes.
Outten said the kind of disclaimer United Talent Agency asks workers to sign could protect the agency from similar lawsuits, though workers could still try to sue if they feel they’ve been harassed or discriminated against. The agency document also tells employees they should feel free to report harassment or other concerns internally and that there will be no retaliation for doing so.
Still, a former agency worker said she felt the disclaimer would make it pointless to sue or complain.
“Reading it, as a woman, I can see how it would be a disincentive for me to report any kind of sexual harassment,” said the former employee, who said she has not been the victim of harassment at work. “They could pull out this document and say, ‘You waived your right to complain about this type of behavior.’”
Agency representatives declined to comment on the document. But in an email sent less than a week after the New York Times first reported harassment and assault allegations against Weinstein, agency Chief Executive Jeremy Zimmer reiterated the company’s position that workers should report abusive behavior.
“UTA respects and protects the boundaries of our colleagues and clients,” Zimmer wrote, according to a copy of the email reviewed by The Times. “If you feel uncomfortable, threatened or exposed, if a client feels that way, if a colleague does -- you are safe to come forward.”
A common thread through nondisclosure agreements is the use of arbitration or other private proceedings to settle disputes.
The agreements for the “Shark Tank” producer and United Talent Agency demand that any disputes related to confidential information be managed in arbitration, a private system in which testimony, documents and rulings are not available to the public. DiCaprio’s agreement does not call for arbitration, instead demanding that any disputes be handled in court, with the court file sealed and with a protective order prohibiting the release of confidential information.
Some confidentiality agreements detail the consequences for breaking them. The agreement for DiCaprio’s company states that contractors must pay the actor $250,000 if they violate the deal, while the “Shark Tank” agreement called for a payment of $5 million, a sum the document calls “the fair average compensation for any harm” that could result from a breach. A spokeswoman for MGM Television, which now produces “Shark Tank,” declined to comment on the document.
Nondisclosure agreements are generally presented as standard documents that workers must sign as a condition of employment, though some workers protest.
The freelance technician who said he refused to sign DiCaprio’s agreement has balked at signing others, too. Some companies have kept him on anyway, he said, but fewer firms are willing to do that now.
“When I wouldn’t sign, they’d just overlook it because they know me,” he said. “But that’s changing as they get more and more serious.”
Other workers acknowledge they generally do not scrutinize the terms of nondisclosure agreements because they feel they have no choice but to sign.
A former “Shark Tank” worker said that’s especially the case for freelance workers, who rely on referrals and may fear that refusing to sign an NDA — or reporting harassment — could damage job prospects in the future.
“If I give them the impression that I could be a liability, well, now I've got a mortgage that can’t be paid,” the worker said. “The truth is, it’s a buyers’ market. Everyone is replaceable.”
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