The Washington PostDemocracy Dies in Darkness

As California moves to protect workers calling out discrimination, advocates look to take their movement global

The ‘Silenced No More Act’ would give in-state workers significant protections from NDAs; its supporters want to pressure companies to adopt its protections everywhere

Ifeoma Ozoma posses for a portrait inside her home in Santa Fe, N.M., in 2020. She is a co-sponsor of California legislation that would make it easier for workers to speak out against discrimination, and she plans to pressure tech companies to adopt such policies nationwide. (Adria Malcolm for The Washington Post)

The architects of a California bill providing some of the most comprehensive protections in the country for workers who expose discrimination have a plan to make the legislation resonate globally.

The bill, known as the “Silenced No More Act,” would make it easier for workers to speak out about racism, harassment and other workplace abuse by preventing companies from enforcing nondisclosure agreements and nondisparagement clauses against reports of discrimination. NDAs are widespread, but are particularly common at large tech companies, which have struggled with diversity and inclusion. The bill recently passed the state legislature, and its co-sponsors expect it to be signed into law by Gov. Gavin Newsom (D) imminently.

It emerges out of the experiences of one of its co-sponsors, Ifeoma Ozoma, who went public in June 2020 with her experience of racism and pay discrimination while working as a public policy manager at Pinterest. As the company put out statements proclaiming “Black Lives Matter,” Ozoma, who is Black, faced legal hurdles in sharing her story due to a restrictive nondisclosure agreement that she says Pinterest designed to ensure she would stay quiet.

Black women say Pinterest created a den of discrimination — despite its image as the nicest company in tech

But the legislation, if passed, would be limited to employment agreements for California-based workers, who represent just a fraction of all tech workers, raising concerns among employee advocates that workers at the same company could be subject to wildly different protections depending on their location. This patchwork effect is of particular concern in the tech industry, where companies have encouraged remote work policies during the pandemic and opened satellite offices in other states, such as Texas.

Pinterest has come out in support of the proposed bill, with chief executive Ben Silbermann telling employees in April that the company would adopt its protections regardless of whether it is passed into law. Earlier this week, several tech investors, including Bloomberg Beta’s Roy Bahat and Derek Slater, of the Connectivity Fund, signed a letter addressed to Newsom, telling him the bill was a “common-sense rule” and “good for business.”

Tech companies have largely been silent on the legislation and have refused to clarify whether the bill’s protections would extend to employees outside of California. Both Google and Facebook declined to comment on the bill, and Apple did not respond to a request for comment. Expensify, a company that makes software that helps companies manage expenses, said during an event hosted by the tech publication Protocol that it would adopt language to ensure its employees can talk about discrimination in the workplace.

Ozoma and other advocates, including Open MIC and Whistle Stop Capital, are working together to pressure tech giants such as Google and Facebook to expand the bill’s protections to all employees globally through a campaign to engage shareholders, who have a financial incentive to know if there is abuse happening at a company.

“There is no reason why you should have different labor protections for employees in different places,” Ozoma said. “Particularly if you’re a large company, and the majority of your workforce is based in California.”

As the scrutiny on corporate responsibility has dialed up, activists are increasingly partnering with shareholders to leverage their relationships with companies to demand transparency on issues such as diversity, inclusion and sexual harassment, arguing that such policies directly impact their bottom line. Goldman Sachs, for instance, opened a review of how it uses mandatory arbitration in employee complaint cases following pressure from shareholders.

“This is one of the fastest moving issues in terms of institutional investor pickup and the strength of the business case,” said Meredith Benton, founder of Whistle Stop Capital, which is working with Ozoma on tech company outreach.

They have embarked on the first test of the strategy at Apple. After the company declined Ozoma and the other activists’ request to add language explicitly allowing its workers to discuss “unlawful acts in the workplace, such as harassment or discrimination” to its agreements, the group worked with social impact investor Nia Impact Capital to file a shareholder resolution against the company last week.

The resolution called on Apple’s board to prepare a public report assessing how the use of NDAs and concealment clauses might present risks to the company in instances of discrimination. “Investors cannot be confident in their knowledge of Apple’s workplace culture,” Nia Impact Capital wrote in its resolution.

The Technology 202: Pinterest supports a bill that would make it easier to condemn workplace abuse, after ex-employees alleged racism

The “Silenced No More” bill would take effect in 2022 if signed by the governor. If it does, it will be one of the most comprehensive laws protecting workers from NDAs and other concealment clauses, which worker advocates say are increasingly used as “gag orders” to prevent employees from speaking about discrimination — not just to the media and publicly on social networks, but even with their friends and family.

The bill would also mark one of the most tangible legal changes for workers in the wake of last year’s national reckoning on race, after a police officer’s murder of George Floyd prompted millions of Americans to take to the streets in protest of systemic racism. Scores of companies — including Pinterest — put out statements in support of the movement, donated funds to racial justice groups and made promises to improve diversity among their own ranks. But advocates for racial equity have questioned whether the companies will follow through with these commitments, especially as the media spotlight on the issue dampens with time.

“If corporations really are going to mean what they say, deliver on their promises, the way to ensure they’re actually doing that is by allowing their workers to speak,” said Mariko Yoshihara, legislative counsel and policy director at California Employment Lawyers Association, which co-sponsored the legislation. “At the end of the day, we need to make sure they’re doing right by their workers first.”

NDAs have long been used by companies to protect trade secrets and other proprietary information, but they can also be used as a tool to cover up sexual harassment and racial discrimination. In 2018, in the aftermath of the #MeToo movement, some states, including California, passed legislation to ensure that NDAs would not prevent women from going public with their experiences.

Last year’s racial reckoning highlighted the shortcomings of that law, as employees such as Ozoma sought to speak publicly about their experiences. As a Black woman, Ozoma said she was left in a gray legal area because existing law only protected people from NDAs in instances of sexual harassment, sexual assault and gender discrimination, but not racial discrimination.

NDAs have long been used to silence the abused, advocates say. A new law may change that.

The bill would also expand California law to ensure employees are protected not just from NDAs, but also clauses often included in severance agreements that require people to not disparage their former employer. Advocates say these were particularly problematic during the pandemic, when many workers signed such agreements amid massive layoffs.

Sen. Connie Leyva (D-Chino), who wrote the legislation addressing NDAs in the wake of #MeToo, said that Ozoma’s story highlighted the need to “close the loop” and ensure workers are protected when they speak out against all forms of discrimination.

“It’s just one more thing for workers to have a voice on the job, to allow them to speak out against any and all forms of harassment and discrimination,” she said in an interview.

Organizations that work with shareholders on social justice and corporate accountability issues are trying to talk to more companies about adopting language similar to the “Silenced No More Act” for all employees. They’re starting by trying to have conversations with large tech companies, and if that does not work, they plan to engage shareholders to pressure companies to change their policies.

Benton said there is growing pressure among shareholders to understand the inner workings of companies, particularly regarding diversity and inclusion. Inconsistent laws, where California employees have different protections than workers in other states, could lead to “a heightened level of risk and operational inefficiency.”

“There’s no rationale where a company could present use of a NDA as in the best interest of an investor,” she said.

correction

A previous version of this article misspelled California state Sen. Connie Leyva's last name. The article has been corrected.

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