For unpaid interns on Capitol Hill, secrecy is so much a part of the job that on their first day, many are required to sign sweeping nondisclosure agreements.
Employment lawyers reviewed two Hill NDAs obtained by Vox and said they are written in a way that could discourage interns from speaking up about anything, potentially protecting members of Congress and their staff even in cases of harassment or abuse.
“[Interns] are going to read it and think, ‘I can’t say anything to anyone or I’m going to be sued,’” said Alexis Ronickher, an employment lawyer at Katz, Marshall & Banks.
The NDAs came from a Democratic House office and a Democratic Senate office. Four lawyers reviewed the agreements and said some of the requirements looked standard but others did not. The lawyers questioned the scope of the language, the absence of an exception for incidents of harassment, discrimination, or abuse, and the fact that interns are not guaranteed a copy of what they signed.
In interviews, 20 current and former Capitol Hill interns said they signed NDAs while working in Republican and Democratic offices in the House and Senate. Vox agreed not to publish their names because they feared professional repercussions, especially given that they signed the agreements. Five offices confirmed they require interns to sign, several citing the need to keep legislative decisions and constituent information private. Eight did not respond to repeated requests for comment, and one denied the use of an NDA.
An aide for Sen. Kirsten Gillibrand (D-NY), who is working on a bill to give interns more rights in filing harassment complaints, said their office’s use of an NDA is “standard practice aimed at protecting routine confidential information pertaining to the office’s duties.”
While some interns said in interviews they had nothing but positive experiences on the Hill, other men and women said they experienced or observed questionable behavior that went unmentioned to anyone with authority because of a strict hierarchy that encouraged silence.
A woman who interned on the Hill this past summer, when she was 21 years old, showed Vox text messages she received from one of her superiors asking what she and her fellow interns were up to. He eventually began inviting her to his house alone. His escalating communications made her uncomfortable, but she decided it was better not to say anything for fear of professional repercussions.
She said she never connected the NDA to the man’s behavior. But looking back, she described how the document reinforces a culture of silence. “Nondisclosure agreements are about following the rules,” she said, “and not rocking the boat is about following the rules.”
A series of recent stories about lawmakers paying off victims of sexual harassment sparked a #MeToo moment on Capitol Hill, including a bill to reform the complicated process staff must endure to make an official claim. But the reckoning doesn’t extend to interns, who have limited protections even under the troubled official system. Instead, starting on their first day, they are sent the message that what happens in Congress stays in Congress.
NDAs are supposed to protect sensitive information. They protect the office instead.
Offices on the Hill say the practice is about protecting information. Interns speak with constituents, answer letters, and perform administrative tasks that can include coming across Social Security numbers, addresses, and employment information.
“We ask our interns to sign an agreement that acknowledges that they understand that they will come across this information during their internships and commit to not disclosing it unless authorized,” said one staffer in a Republican senator’s office.
But the NDAs obtained by Vox are much more broad. They apply even after an intern leaves the Hill. They prohibit an intern from talking about the professional or personal lives of the member of Congress or other office employees. And the interns are left to believe that breaking the agreement jeopardizes their internship.
Ronickher, who once worked as a Hill intern before becoming an employment lawyer, wasn’t surprised that congressional offices would want to prevent interns from spreading information about the member of Congress, constituents, or legislative activities.
But she was surprised by how far-reaching an NDA from the Democratic senator’s office seemed to be.
“It’s pretty bizarre to include the entirety of the staff,” Ronickher said, referring to a line in the agreement that says interns may become aware of information “involving the personal or professional lives of the Senator or employees of the Office” and that the intern understands “that disclosure of such sensitive and/or confidential information outside the Office could breach my duties as an employee of the Office.”
About one-third of the US workforce is bound by nondisclosure agreement. Most NDAs cover intellectual property, like the kind Silicon Valley firms require of engineers, according to Les Alderman, an employment lawyer at Alderman, Devorsetz & Hora who has represented staffers in mistreatment claims against Congress.
Another type has cropped up in the news recently, which covers payouts to employees, like some of the victims in the Harvey Weinstein scandal. Alderman explained that interns sign a less common variety, which limits employee conduct.
The lawyers Vox spoke to were all skeptical that a judge would find either of the NDAs persuasive in a lawsuit. Some offices do ask for legal guidance from the House or Senate counsel to make sure they meet legal standards, but counsel aims to protect the office, not the interns.
“It’s politics, and everyone is paranoid that any information could be used against them — they want to have the most broadly worded one so [interns] don’t say anything,” said Ronickher.
The employment lawyers said the bigger issue is that the agreements create the appearance that interns have waived their legal rights.
Peter Romer-Friedman, a DC employment lawyer at Outten & Golden, said a responsible NDA would have in “very clear bold and capitalized language” a disclaimer that the signer “does not waive the right to make a complaint against anyone, including a member, about harassment or discrimination.”
Most of the interns who reported signing an NDA said the document was presented to them on their first day. They signed it but never received a copy and didn’t have a chance to show it to a lawyer or anyone else. Most interns are 18- to 22-year-old students, unlikely to have much exposure to NDAs.
“That they’re not allowed to take these things home, I find that to be unscrupulous,” said Alderman.
Interns have no recourse if they’re harassed
Most congressional internships are unpaid, which means interns may have trouble accessing the same protections as paid Hill employees.
The complaint process inside Congress is reserved for paid employees. It’s been roundly criticized since a series of stories broke last year about members paying off victims out of their office budgets and victims facing retribution for speaking up. The House of Representatives passed their own bill meant to reform it earlier this year.
Gillibrand is writing a bill that would extend some rights and protections from workplace harassment and discrimination to interns, including the ability to file complaints. The Congressional Intern Protection Act of 2015 had the same goal, but the last action on it was in July 2015.
Under the current system, if an intern tried to sue their congressional office for mistreatment, their claim likely would not hold up in court, said Romer-Friedman.
“Right now, an intern who wanted to assert a claim would face a credible argument that the person is not an employee and therefore has no rights,” he said. “It’s hard for them to assert damages if they’re not being paid — if you get fired because you complain about being harassed, what are your damages? Other than emotional harm?” he went on to say.
The issue of vulnerable, unpaid workers isn’t new on Capitol Hill. Then-Rep. Mark Foley sent sexually suggestive emails and instant messages to high school boys in the page program for years. When the scandal broke in September 2006, the House responded by suspending and eventually canceling the page program altogether.
A woman who interned in the summer of 2016 for a Republican senator described how little progress has been made since. Women in her office openly talked about men standing too close or making inappropriate remarks, she said. They joked about how the young woman gets the blame for unwanted attention — or, as they call it, the “Monica Lewinsky standard.”