contract-law employment
HR wants me to sign a confidentiality on something I reported. How big is the scope of the agreement?
<p>Basically what happened is a coworker made a false statement about me, relating to my work, on Social Media. I reported it to HR. HR wants me to sign the following. I'm concerned with how broad and general it is. </p>

<blockquote>
  <p>By participating in the investigation brought to my attention, I
  understand that I have been asked to participate in providing
  information under a current open investigation process. In that
  regard, unless it is necessary to obtain professional advice, I agree
  to not disclose, or discuss with anyone, any matters relating to the
  investigation which includes but is not limited to: </p>
  
  <p>• The issues discussed with the investigator at any time.  </p>
  
  <p>• The fact
  that I am participating in an investigation. </p>
  
  <p>• My opinions on the validity or nature of the complaint. </p>
  
  <p>• Whether and what other individuals might also be participating in
  the investigation. </p>
  
  <p>• All documents created by me or shared with me during the
  investigation.</p>
</blockquote>

<p>Does this only apply to the investigation, or does this mean I cannot talk about the reported event at all, or only information that comes to light after signing the agreement? What is the scope? </p>

<p>Are the terms even enforceable, like is the first one saying I can neither confirm nor deny I have reported something to HR? </p>

<p>Could signing this in any way limit legal action I could take? I'm in Canada but the company was recently bought out by an American company so the HR department is in the US.</p>

<p><strong>tldr;</strong> the agreement is a mess, one-sided, do not sign.</p>

<p>This agreement does little to serve your interests, and a lot to harm them.</p>

<p>It is also fairly poorly phrased, I have doubts that someone with legal knowledge wrote it. It states:</p>

<blockquote>
  <p>I agree to not disclose, or discuss with anyone, any matters relating to the investigation</p>
</blockquote>

<p>You are agreeing not to talk to the investigator. If you do talk to them, you will be in breach of the terms you've agreed to. I'm sure they'll just say "oh, that's not what it means" - but that is not how contracts work, they mean what they say.</p>

<p>It also says:</p>

<blockquote>
  <p>which includes but is not limited to:
  ...
  All documents created by me or shared with me during the investigation.</p>
</blockquote>

<p>This applies to documents created during the investigation, not in relation to the investigation, not for use in the investigation, not related to the complaint. And again, you can't share these documents with anyone, including the investigator.</p>

<p>It may well be unenforceable, as it gives you nothing in exchange for the rights you are giving up, and the concept of "consideration" is key to the common law of contracts in the USA, and also Canada (stemming from British common law) which means both parties must receive something of value:</p>

<p><a href="https://en.wikipedia.org/wiki/Consideration_under_American_law" rel="nofollow noreferrer">Here's a wiki article on Consideration in US law</a></p>

<p><a href="http://www.canadianlawsite.ca/contracts.htm#e" rel="nofollow noreferrer">and a page on Consideration in Canadian law</a></p>

<p>With all of these flaws and the fact that it may well be unenforceable, it would not be wise to sign it.</p>

<p>If it did the following, it might be a more useful agreement:</p>

<ol>
<li>Had time limits, after which the restrictions are lifted</li>
<li>Allowed you to acknowledge the case and state that you can't discuss it while it is ongoing</li>
<li>Applied only to the workplace, talking to the press and publishing details to the public internet, such as social media - this may already be in your contract of employment (relating to bringing the company into disrepute) if so it isn't really a restriction being applied by this agreement, but a re-iteration of the existing agreement</li>
<li>Promised a fair investigation in a timely manner, with a report at the end, and appropriate action is taken if claims are substantiated, and libel has occurred</li>
</ol>

<p>Or, they could offer you money right now for your silence, that would absolutely be consideration, in some jurisdictions, the sum may need to be considered reasonable, but this is not universal.</p>

<p>There are also cases where NDAs turn out to be invalid:</p>

<p><a href="https://www.everynda.com/blog/11-ways-invalidate-nda/" rel="nofollow noreferrer">11 ways NDAs can be invalidated</a></p>

<p><a href="https://www.lexology.com/library/detail.aspx?g=ade7e3a9-3232-4bfd-9c92-28f25dfbde71" rel="nofollow noreferrer">An actual case where an NDA was found to be too broad</a></p>

<blockquote>
  <p>How big is the scope of the agreement?</p>
</blockquote>

<p>Even if HR ends up doing nothing to duly redress the issue, signing the agreement forfeits your right to dismantle/refute the false accusations elsewhere and/or to seek relief in court. Based on my personal experience with the University of Michigan HR's department, I suggest you <strong>not</strong> to expect your company's HR department to conduct the matter with diligence or integrity.</p>

<blockquote>
  <p>Does this only apply to the investigation, or does this mean I cannot talk about the reported event at all</p>
</blockquote>

<p>The first bullet point literally prohibits you to talk about the event ("<em>The issues</em>") itself as long as you ever discuss or have discussed it with the investigator. It is obvious that at some point to the investigator will ask you about the event, even if only to bring it to the scope of the prohibition. If HR's intent were any good (or willing to mend its innocent albeit incompetent wording), HR would agree to prohibit only the disclosure of your <em>interactions</em> with the investigator.</p>

<p>The third item ("<em>[your] opinions on the validity or nature of the complaint</em>") once again touches on the prohibition to talk about the event. That is because your complaint inevitably is premised on <em>the validity [and] nature</em> of the event you reported and from which the complaint ensued.</p>

<p>The fifth item further ties your hands should you seek relief in court or denounce the matter elsewhere. For instance, the agreement strikes your ability to [re-]produce those records in discovery proceedings. A U.S. court which disavows its job of ascertaining the truth will use your pre-suit consent (i.e., this agreement) as a pretext for denying the production of those records, arguing that under contract law a party's change of mind is insufficient to void a formed contract. The resulting lack of evidence is likely to doom your lawsuit altogether.</p>

<p>The clause's exceptional permission for disclosure "<em>necessary to obtain professional advice</em>" falls short of recognizing your entitlement to bring the matter to court. One thing is to "<em>obtain professional advice</em>", and another thing is to "<em>bring court proceedings apropos of the event</em>". The clause only enables you to disclose for purposes of the former (for instance, when that advice is intended for an unrelated legal proceedings).</p>

<blockquote>
  <p>Are the terms even enforceable, like is the first one saying I can neither confirm nor deny I have reported something to HR?</p>
</blockquote>

<p>As long as you agree to them, yes, they are enforceable.</p>

<p>Many injured people sign settlements prohibiting them to talk about the matters at issue (including the compensation/indemnity received as part of the settlement) and making them waive their entitlement to seek remedies in court. Here you should ask yourself whether the indemnity (if any) you would receive in exchange for binding yourself to these clauses is at least proportionate to the waivers and prohibitions to which this agreement is tantamount.</p>

<p>Lastly, I an not knowledgeable of Canadian law, but the statute of limitations for claims of defamation is one year almost everywhere in the U.S. The exception is Tennessee and possibly other few states, where it is six months. Thus, delaying the investigations can be a tactic to prevent you --or have the effect of preventing you-- from bringing suit at least in the U.S. Of course, your employment contract or company's bylaws might preemptively indicate the jurisdiction (U.S. or Canada) in which an employee may file a lawsuit against the company or any of its employees <em>in their official capacity</em>.</p>
