Amid Cuomo fallout, Time’s Up says employees are not barred by confidentiality agreements from speaking out
By Michael Scherer,
Arturo Holmes Getty Images
Time’s Up, the advocacy group founded by political veterans and Hollywood insiders to fight workplace sexual misconduct, said Friday that current and former employees who signed contracts with confidentiality clauses can speak freely about their experiences at the organization.
The statement followed a request from an activist to Time’s Up President Tina Tchen to release employees from the agreements amid an uproar over the role that the group’s leaders played in advising New York Gov. Andrew M. Cuomo (D) as he launched an effort to undermine one of his sexual harassment accusers.
Two former staffers have told The Washington Post that agreements they signed with the organization have limited their willingness to speak out about their concerns about the group.
“We certainly have no intent to take any action against anyone expressing their views or experiences about TIME’S UP,” Tchen said in a statement to The Post on Friday. “We are reaching out and will make that clear to current and former employees.”
Time’s Up has long included confidentiality and nondisparagement agreements in its employment contracts, with exceptions for speaking about workplace conditions like wages and harassment.
Tchen’s statement that the organization does not plan to enforce those provisions against those who raise concerns about internal issues comes as the group is contending with the turmoil unleashed by New York Attorney General Letitia James’s investigation of alleged harassment by Cuomo.
A report released by James early this month detailed how Roberta Kaplan, a co-founder of Time’s Up, consulted with a top Cuomo adviser on a letter that investigators later concluded was part of an unlawful effort to retaliate against one of Cuomo’s accusers. It also said that Kaplan discussed a draft of the letter with Tchen.
[How Cuomo’s office sought help from prominent liberal advocates as it pushed to discredit an accuser]
More than 130 sexual harassment and assault survivors have signed an open petition to the group calling for an independent investigation of its interactions with Cuomo and other figures accused of misconduct. Former Cuomo adviser Lindsey Boylan, whom the attorney general’s report found was targeted for retaliation after accusing him of harassment, has called on Tchen to resign.
Kaplan has since resigned from the board. Tchen said she did not realize that the letter would be used to try to undermine Cuomo’s accuser. She has said she is developing a plan for Time’s Up to earn back the trust of the survivor community.
“The last thing I want any of my actions to do is to cause added pain or harm to survivors,” she wrote in a public statement this month. “And yet, I now know that some of my actions have done just that. For that I am profoundly sorry.”
Alison Turkos, a sexual assault survivor and activist, who organized the petition from survivors calling for changes at the organization, emailed Tchen on Thursday after hearing from former Time’s Up staffers who she said supported her effort anonymously because of their employment contracts. Turkos asked Tchen to publicly release all current and former “staff, volunteers and board members from nondisclosure, confidentiality, and/or non-disparagement agreements.”
“It should not have taken a fight like this for workers to be released from these agreements,” Turkos said Friday, after the organization said employees were free to voice their concerns. “Time’s Up still has a lot of work to do.”
The attorney general’s report found that top Cuomo aide Melissa DeRosa, who later hired Kaplan’s law firm to represent her, reached out to Kaplan after Boylan tweeted her allegations of misconduct by Cuomo in December. DeRosa was seeking comment on a letter, intended to be signed by former Cuomo staff members, that had been drafted by the governor and aides as part of an effort to undermine Boylan, according to investigators.
DeRosa told investigators that Kaplan reported back to her, after reading the letter to Tchen, that the document was fine, as long as it removed statements about “Boylan’s interactions with male colleagues,” according to the attorney general’s report. At the time, current and former advisers to Cuomo, including DeRosa, were concerned that releasing the letter was a bad idea, the investigation found.
Tchen has said that she does not recall the specifics of her conversation with Kaplan but that she is confident she would not have advised Cuomo to undermine an accuser. Kaplan has similarly denied advising anything that would “shame an accuser.” She has written that her ability to comment on the situation is limited because her firm represents DeRosa.
People who were involved in conversations about how Time’s Up handled the claims against Cuomo, and who spoke on the condition of anonymity to discuss internal deliberations, said that when Boylan first tweeted allegations of harassment by the governor in December, there was debate inside the organization about why it was not issuing a public statement supporting her.
Tchen had taken the position at the time, they said, that the group could not respond to all self-reported allegations.
The internal conflict resurfaced again in February, according to three people involved in the conversations, when Boylan posted an account on Medium detailing her allegations of misconduct by Cuomo, including an unwelcome kiss, discussion of strip poker and other advances.
Tchen released a statement on Feb. 25 that called “on the Cuomo administration to conduct a full and independent investigation into these claims immediately.” That phrasing caused a backlash on social media and inside the organization, these people said, because such an arrangement could allow Cuomo to maintain some control over how the investigation was conducted.
“We wanted to put the survivor first and call for a fair and independent investigation, and it was muddied,” said one of the people involved, describing the conversation at the time. “So many people raised questions and were concerned.”
A spokesperson for Time’s Up declined to comment on the internal discussions.
Three days after the Time’s Up statement, Cuomo’s office relented under mounting political pressure and asked James to conduct an independent investigation. Time’s Up then released another statement on Twitter, fully supporting that effort.
“Time’s Up supports the women who have made the decision to come forward with allegations concerning Governor Cuomo,” the statement said. “Doing so is difficult under any circumstances but especially when the issues involve a powerful public figure.”
Time’s Up has long warned that nondisclosure agreements can be used to silence victims, criticizing NBC Universal, the National Football League and Bloomberg LP for their use of such provisions after investigations of sexual assault or harassment.
“NDAs (Non-Disclosure Agreements) allow companies to behave in ways that are harmful to their employees without facing consequences,” the organization tweeted on March 9, in an endorsement of a California law that would expand protections for workers.
The group’s website encourages people to sign up for a campaign to expand the number of states that “have limited or prohibited employers from requiring employees to sign nondisclosure agreements (NDAs) as a condition of their employment, or as part of their settlement agreement.”
Time’s Up documents obtained by The Post show that the employee manual at the organization included a broad ban on employees discussing internal matters with anyone outside the organization, a separate ban on speaking to the press without prior approval and a requirement to report any press contacts to management.
A separate document given to an employee upon entering the organization includes similar language about disclosing confidential information. The document also bars the employee from “either directly or indirectly” making any “derogatory public statement concerning the company” during their employment or in the two years following their termination.
That document, which threatens legal action for a breach of contract, provides an exception for “discussing and disclosing working conditions at the company,” including wages, unlawful discrimination and harassment.
“TIME’S UP has never prohibited employees from discussing or disclosing working conditions at TIME’S UP and state that in our employment agreements,” Tchen said in her statement to The Post.
“Those agreements also include a standard nondisparagement clause common in many employment agreements — which is not a nondisclosure agreement or what is known as an ‘NDA’ — but we certainly have no intent that such a clause prohibit any current or former employees from speaking about their views of TIME’S UP.”
