Can Tech Workers Complain approximately Sexual Harassment? Depends What They Signed.
One key obstacle to understanding the scope of sexual harassment and discrimination in Silicon Valley is the culture of employment agreements, non-disparagement clauses, and ironclad settlements that withhold everything from product plans to allegations of abuse under wraps.
But amid growing concern approximately sexual harassment in key American industries, iconic tech companies like Amazon, Apple, Google, Microsoft, Facebook, and Uber are largely silent approximately legal agreements that might hamper their employees’ ability to publicly discuss sexual harassment in the workplace, a position that reflects the line the tech industry is trying to walk as it works to change its image without ceding legal liability.
There absorb been reports of allegations of sexual harassment or discrimination at whole of these companies (Amazon, Apple, Google, Microsoft, Facebook, Uber), and they raise questions approximately legal agreements that might prohibit employees from publicly speaking approximately them.
BuzzFeed News asked Amazon, Apple, Google, Microsoft, Facebook, and Uber whether any current or former employees were subject to these kinds of agreements and whether the companies would release any such employees from them. not a soul of the companies addressed the question head-on, though two — Google and Microsoft — suggested that they wouldn’t throw up obstacles to women who want to speak out.
“We don’t and we won’t tolerate sexual harassment or assault, and we don’t and we won’t allow nondisclosure agreements to become a tool to enable those who engage in such conduct to continue with this type of wrongdoing,” said a Microsoft spokesperson.
“We encourage our employees to report concerns approximately harassment,” Google spokesperson Gina Scigliano told BuzzFeed News. “Our employment agreements don’t prohibit anyone from talking publicly approximately instances of harassment.”
Nondisclosure agreements and other forms of enforced silence moved to the center of the national conversation as it became clear that former Miramax chief Harvey Weinstein bought silence through settlements with his alleged victims. In Silicon Valley, victims who were allegedly harassed by the venture capitalist Justin Caldbeck were reportedly routinely silenced using nondisparagement agreements struck between them and the firms that employed Caldbeck.
“They design people believe that they can’t complain or recount their narrative.”
Employment lawyers say that companies could easily free victims of the obligation to stay silent.
“Any company in America is within its rights to fade back to the workers it’s settled with and say, ‘We’ve made a decision — we believe that our commitment to civil rights is more distinguished than the silence we bought,’” Peter Romer-Friedman, an employment lawyer at Outten and Golden, told BuzzFeed News.
Even companies that decline to release former employees who absorb signed settlements may not absorb as much control over workers’ speech as their employees believe. NDAs that some tech industry employees are asked to sign after accepting a strange job typically allow them to share any concerns related to their work environment — just not company trade secrets — publicly or with the press, in accordance with federal law. In 2013, a National Labor Relations Board judge ruled that the nondisparagement provision included in a standard employment contract was an “unfair labor practice.” Microsoft, Facebook, Apple, Google, and Amazon whole famous this, though they declined to share the relevant portion of their employment contracts with BuzzFeed News; Uber did not respond to BuzzFeed News’ request to see its contract. You can read the companies’ full statements below.
“[NDAs in standard employment contracts] are often very damaging” to employees who believe they are legally required to stay silent approximately harassment they’ve experienced, Romer-Friedman said. “Because of how broad they are, they design people believe that they can’t complain or recount their narrative … I can see an ordinary worker thinking that their NDA that covers general things — company secrets or proprietary information — could even extend to workplace issues.”
Civil rights attorney Gloria Allred told BuzzFeed News that many employees don’t necessarily understand what they’re agreeing to when they sign standard NDAs. “I would say it’s objective to say most people give it very cramped — and perhaps no thought — when they sign,” she said.
whether general NDAs can limit employees from speaking out in practice, it’s the additional ones employees often sign as piece of severance terms or when they reach a settlement that are often written to explicitly stop them from going public. Confidentiality provisions in such NDAs and nondisparagement agreements can and execute withhold workers silent. The sanctions can be severe: When enforced, an alleged victim might be forced to pay back not just the full amount of the settlement but additional financial penalties, or even the other party’s legal fees.
“The bottom line is it’s a lot of risk to the employee,” said Allred. “There are lots of people out there now naming whole kinds of names, and they’re taking a risk of being sued. That may be a risk they’re willing to win, or they may be unaware of the risk.”
When pressed approximately whether the companies would release current and former employees from any confidentiality provision or NDA used in a settlement agreement, whole companies declined to retort the question apart from Amazon, which said it would evaluate the question on a case-by-case basis.
Under the National Labor Relations Act, employers are not allowed to prohibit workers from discussing sexual harassment or sexual discrimination complaints at work or in legal claims, which is why general NDAs don’t include language to that effect. “A tech company that required employees to sign absent that right would be in violation of federal labor law,” said Daniel Hermel, a University of Chicago professor of law. Settlement or severance NDAs are a different matter.
Though whole six companies declined to retort BuzzFeed News’ question approximately releasing employees from settlement-specific NDAs, some implied, as a defense, that they didn’t absorb to — because there are already formal ways to lodge a complaint with federal and state governments, in which such confidentiality provisions would be invalidated. “whole employees, regardless of whether they absorb signed a separation agreement, can always file formal complaints with state or federal nondiscrimination agencies,” reads Apple’s statement, in piece.
“They’re not going to suddenly say, ‘We’re going to be on the side of victims.'”
Federal law stipulates that whether there’s a settlement or not, an aggrieved employee always has the option to file charges with the Equal Employment Opportunity Commission or their state nondiscrimination agency. But anti-discrimination and anti-harassment laws are under-enforced by these agencies, which can design formally filing a claim seem like a far less appealing option to an employee with an experience of harassment. Findings by state and federal nondiscrimination agencies are also not made public, unless a claim is attached to a lawsuit.
Ultimately, Allred said, NDAs may become more prevalent as companies execute what they can to protect themselves at a moment when sexual assault is central to the national conversation. “execute I believe they’re going to start changing NDAs?” she asked. “No. whether anything, whether they haven’t thought of having an NDA, they may choose, ‘Wait, perhaps, possibly we should absorb one for our company.’ Or, ‘we need to review our NDA to design certain it’s tougher.’”
Instead of releasing employees covered by settlement NDAs, Allred said, companies could clamp down. “They’re not going to suddenly say, ‘We’re going to be on the side of victims, we don’t care approximately our bottom line, they can say or execute anything they want, and that’s okay with us,’” she said. “The companies are always going to observe out for their self-interest.”
Here are the companies’ full statements in response to BuzzFeed News’ query:
Amazon told BuzzFeed News that the NDA that whole employees sign does not absorb anything to execute with whether an employee can speak up approximately any concerns related to their work environment. It only requires that they not share confidential commerce, trade information. Employees are always free to share information approximately their work environment, the company said — whether it’s positive or negative.
Apple sent BuzzFeed News the following statement: “At Apple, we believe deeply that everyone should be treated with dignity and respect and we absorb strong policies in set to reinforce that. We know that innovation thrives in an open environment free of harassment or discrimination. Whenever employees raise concerns, we investigate the allegations and win appropriate corrective action including termination. Current and former employees who absorb not signed a separation agreement are free to speak publicly approximately their workplace experiences. And whole employees, regardless of whether they absorb signed a separation agreement, can always file formal complaints with state or federal nondiscrimination agencies.”
A spokesperson from Facebook confirmed that the company has restrictions on sharing company confidential information such as strange products or financials, but nothing that would prevent people from sharing personal circumstances with the press. The spokesperson went on to note that Facebook has a strict anti-bullying and harassment policy, with multiple channels available to employees who would like to report behavior without awe of repercussions.
A Google spokesperson sent BuzzFeed News this statement: “We encourage our employees to report concerns approximately harassment. Our employment agreements don’t prohibit anyone from talking publicly approximately instances of harassment.”
Microsoft sent the following statement: “We don’t and we won’t tolerate sexual harassment or assault, and we don’t and we won’t allow non-disclosure agreements to become a tool to enable those who engage in such conduct to continue with this type of wrongdoing.”
Uber told BuzzFeed News that its confidentiality provisions for employees execute not prohibit them from speaking out approximately issues of harassment, which has been well-documented publicly.
BuzzFeed spokesperson Matt Mittenthal told BuzzFeed News: “The agreements we put a question to our employees to sign concern proprietary commerce, trade information. We execute not, and would never, put a question to a victim to remain silent approximately harassment in any form.” Mittenthal added that BuzzFeed does not consume settlement agreements in cases of alleged sexual harassment or sex discrimination at the company, so there is no NDA related to harassment or discrimination to release employees from.
Davey Alba is a senior technology reporter for BuzzFeed News and is based in strange York.
Contact Davey Alba at email@example.com.
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