Nondisclosure Agreements: Be Cautious

Imagine yourself in this situation: after two years in a provost’s position, it’s increasingly clear that things are not going well for you. You’ve learned some things about your institution that were concealed during the search process that make the job more difficult than anticipated and don’t reflect well on the institution. And for whatever reasons, those you work with are not responding well to your leadership. They think you are the problem; you think that they are a difficult group for anyone to work with.

While it’s hard to talk directly with your president about the institutional shortcomings, you have tried to work with her on improving your leadership. Perhaps there has been some improvement, but you sense that she increasingly thinks you are just not a good fit and you are the cause of some of the problems you are having.

Your president is not unsympathetic to your plight. She still thinks you are a talented person but now recognizes -- as she didn’t when she hired you -- some shortcomings that will make your current position an uphill climb. And she worries that you may have burned some crucial bridges already. It’s difficult for you to point out the institutional shortcomings that make your job so difficult, since the president is responsible for some of them. You both think that you have a greater chance of success elsewhere.

So you agree on an amicable separation. She offers you a generous separation package that will allow you time to find another position. And as part of that package, you both sign agreements that you will not speak about the other. In your case, all the institution will give out is your name, position and dates of employment.

What a relief! You have another chance, and you won’t have to worry about people at your current institution talking (in your view, unfairly) about your shortcomings. And you won’t have to get into the messy business about the institutional problems. The perfect solution.

Maybe not. What you don’t realize is that this agreement may also make it difficult for you to get another job.

Institutions to which you apply will naturally want a list of references to call. That won’t be a problem: you can easily find many people who will speak honestly, knowledgeably and positively about you. But if the search is assisted by a search firm, the search consultant will contact off-list references, naturally wanting to speak with someone at your previous institution. When calls are placed, however, no one in an official position there will discuss either your performance or the reasons for your departure. And if you are faithful to the terms of your agreement, you can’t tell the story, either.

At the very least, that creates uncertainty. And if there are other competitive finalists in the search, uncertainty counts against you: “Why take a risk when we have other candidates about whom we have fewer unanswered questions?” Worse, it will create suspicion: “Something not so good must have occurred if people are signing agreements not to talk.”

If you are a strong candidate, search consultants may not give up. They are likely to call those on your campus who are not aware of the nondisclosure agreement. If the campus they call has a policy that requires all reference calls to go through the human resources department, and if everyone lives by the policy, that won’t help.

But if the consultant does find people who will speak confidentially, how reliable will they be? They could be people who know little and gossip a lot; they could be people who didn’t like a decision you made and will jump at the opportunity to vent confidentially. While they can share their perspective on your performance and potential, they can only speculate about the reasons for your departure. But speculation can be wildly off the mark. If you are a super-strong candidate and all your other references are strong, the search committee may overlook the silence. More likely, though, this will cost you the job.

So what to do?

• Have a plan. Anticipate this situation and work out a solution. If your president is supportive of your job search, she will likely be cooperative in developing a plan to address this situation.
• Don’t fear the truth. Many candidates think that a negative reference is the end of their careers. It isn’t. Reference calls almost always turn up something negative. And consultants and search committees are usually wise enough and experienced enough to know that not all negative comments are accurate assessments and not everything in life works out -- even for good, talented people. If the problems you faced are part of a recurring pattern, you may be in difficulty. But if this one situation is an outlier in an otherwise successful career, many will see it for what it is. However, they are more likely to come to this conclusion if you are honest and forthright. In other words, you may have less to fear than you think, and a nondisclosure clause may do more harm than good.
• If a nondisclosure agreement still seems wise -- or inevitable -- make arrangements for approved exceptions that would allow the president or others who know the situation well to speak confidentially. Often presidents are more balanced in their judgment than some think, and they are often more helpful than colleagues down in the trenches who agree to speak confidentially to a search consultant. Remember, your president hired you.
• If you cannot create exceptions within the agreement for your president and others to speak on a limited and authorized basis, learn who is bound by the agreement and who isn’t. The agreement may not cover some people at your institution, and while they do not know the whole story, they can speak credibly on some aspects of it. Include them on your reference list or make their names available to the search consultant if you advance in the search.
• Consult an employment-law attorney. You are always well advised to have legal counsel review a separation agreement. In that case, someone with expertise in employment law may be able to propose several pathways out of your dilemma.