By Susan Allen
As sexual assault and harassment complaints continue to make national headlines, outsiders have begun to wonder whether nondisclosure agreements prevent workers in the tech industry from being able to speak about experiences of sexual harassment or sexual assault in the workplace. Today’s technology giants such as Facebook, Google, Microsoft, and Uber, to name a few, remain largely silent regarding the presence or existence of legal agreements that prevent workers from speaking out against sexual abuse in the office. This lack of public discussion has allowed such companies to maintain a position that “reflects the line the tech industry is trying to walk as it works to change its image without ceding legal liability.”[1]
When companies including Amazon, Apple, Google, Microsoft, Facebook, and Uber were asked if they had agreements that prevented current or former employees from speaking out about harassment, only Amazon, Google, and Microsoft suggested that they would not specifically prohibit such outcry. The remainder of the tech giants listed above remained mostly mute on the matter. Nevertheless, some companies are willing to state that although they require newly-employed personnel to sign agreements, they typically allow employees to voice any concerns they have related to their work environment; these agreements instead focus on the prohibition of the sharing of company trade secrets. An Amazon spokesperson supported this statement by saying, “Employees are always free to share information about their work environment—whether it’s positive or negative.” Additionally, a Google spokesperson stated, “Our employment agreements don’t prohibit anyone from talking publicly about instances of harassment.” These statements support the claim that while employees are required to sign NDAs, they are not necessarily automatically barred from making complaints or accusations regarding potential sexual harassment or assault.
Nevertheless, it is important to highlight that national regulations do exist that prohibit companies from including certain provisions in NDAs. In 2013, a National Labor Relations Board judge ruled that the inclusion of the non-disparagement provision in a standard employment contract was an unfair labor practice. Furthermore, under the National Labor Relations Act, employees are not permitted to prohibit employees from discussing sexual harassment or sexual complaints while at work or in legal claims. Finally, federal law stipulates that even when a former employee receives a settlement, he or she always has the option to file charges with the Equal Employment Opportunity Commission or the state nondiscrimination agency. Despite these protections, employment attorneys still wish to draw attention to the civil rights implications that such exist with these types of NDAs. Attorneys point out that some employees misunderstand NDAs and their broadness and wrongly believe that they cannot share their story or make public their issue. Another issue arises when employees do not entirely understand what exactly they are signing in the first place, or give little thought to the content of NDAs until it becomes too late.
Experts in the employment law field state that companies may soon clamp down and increase the restrictions put in place by NDAs in the near future as a method to cover all of their bases. These experts predict that companies will continue to always want to protect their own self-interests, despite also caring for their workers as well. As a result, they may no longer wish to settle with employees. Regardless of what measures companies will take in the future, it goes without saying that the best solution would be to eliminate sexual harassment and assault from the workplace overall.
Student Bio: Originally from Rochester, New York, Susan is a second-year law student at Suffolk University Law School located in Boston, Massachusetts.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
[1] Davey Alba, Can Tech Workers Complain About Sexual Harassment? Depends What They Signed., BuzzFeed (Nov. 9, 2017), https://www.buzzfeed.com/daveyalba/can-tech-workers-complain-about-sexual-harassment-depends?utm_term=.teklL6mOG#.yeAlzg3wd.
