Protocol on the harm of non-disclosure agreements
Alphabet workers news
Tech-focused online media firm Protocol recently ran a story about the way that tech companies use non-disclosure agreements (NDAs) to muzzle employees and block reform. Several of the stories covered in the article may sound familiar to Alphabet employees, including retaliation for speaking out, and the corporate HR practice of victim-blaming - aka "if you report the problem, you ARE the problem".
Remember that if you're a worker in the U.S., you have the right under federal labor law to speak out and speak to others, including to reporters, if your speech is part of concerted effort to improve the terms or conditions of employment. I'll again point readers to my usual recommended reading, the Brechner Center's white paper "Employees' Right to Speak to the Media: Challenging Workplace Gag Policies". Page 13 of the Brechner report notes that "The NLRB, and courts reviewing the Board’s decisions, have regularly ordered employers to rescind wide-ranging confidentiality rules that leave no room for NLRA-protected speech," and offers some case law examples. If you're encumbered by an NDA that's being weaponized against you, as always I'd advise that you consult with a labor attorney so that you know the full scope of your rights.
For workers in California, the California Code of Civil Procedure section 1001, passed in January 2019 as SB-820, places significant restrictions on the ability of corporations to encumber victims of sexual harassment with NDAs. From legal summary site JD Supra:
Often settlement agreements include broad scope confidentiality provisions that often preclude the claimant from discussing the terms of the settlement and the underlying factual basis of the original claim. [California] Senate Bill 820 added a new section to the Code of Civil Procedure to limit that practice for settlement agreements entered into on or after January 1, 2019. The new Code of Civil Procedure section 1001 prohibits confidentiality or non-disclosure provisions in settlement agreements that prevent the disclosure of factual information involving allegations of sexual misconduct – unless the party alleging the harm desires confidentiality language to protect his or her identity. The law does not void confidentiality provisions that prevent disclosure of the amount paid in settlement of a claim.
If you need to invoke California CCP 1001 to void an NDA, you'll want to speak with a labor attorney first.
Some extracts from the Protocol article appear below.
- Bruce
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https://www.protocol.com/amp/nda-racism-equality-diversity-tech-2646300456
A wall of silence holding back racial progress in tech: NDAs
Tech employees who spoke to Protocol said they experienced racism and discrimination in the workplace but can't speak out for fear of retribution from their employers.
Earlier this month, Pariss Athena appeared on a podcast to discuss her experiences as a Black woman in web development. During the wide-ranging conversation, she mentioned that she had experienced racism while interning at a large tech company in 2017.
Almost immediately after the podcast was published, Athena asked the host to take it down. She'd forgotten she was under a nondisclosure agreement, or NDA, with the company she interned with and feared she could face legal retribution...
Her story is familiar to many people of color who work in the tech industry, who find themselves unable or unwilling to speak out about instances of racial discrimination they have faced because they are bound by stringent NDAs that require them to stay silent publicly about their experiences in the workplace...
Six current or former tech employees who spoke with Protocol said they experienced racism and discrimination in the workplace but can't speak out for fear of retribution from their employers. The employees, who either spoke on the condition of anonymity or declined to name the tech companies they worked for on the record, said they believe NDAs are holding back racial progress in the industry...
"[Tech companies] have the deep pockets to pay for counsel, and they have the foresight to decide that preventing [people from speaking out] is worth quite a bit down the road," [workplace discrimination lawyer Vincent] White said. He said NDAs have become more stringent over the last several years amid the rise in Silicon Valley activism...
One Black woman, who works in tech in San Francisco and also requested anonymity, said it's hard to even discuss these kinds of stories with people she knows because "everyone" is bound by NDAs. She said it's common for tech companies to require people to sign restrictive NDAs on their way out after "agitating" for them to leave, particularly after the employee spoke out internally about discrimination they faced at the firm.
"People are scared, they don't know what they're signing," the woman said. "Then something will happen later, and they realize they want their voice back."...