The ruling marks the latest victory for labor advocates who have sought to force Big Tech companies to relax the stringent confidentiality policies that compel employees to stay quiet about every aspect of their jobs, even after they quit. In recent years, new legislation in California has taken aim at confidentiality agreements that block victims of sexual harassment and discrimination from speaking out. The decision isn’t final and could still be appealed by Google.
Google spokesperson José Castañeda declined to comment on the case or whether the company would appeal it.
“It’s great language. It’s a great argument. It’s something I would try to use in a similar case,” said Ramsey Hanafi, a partner with QH Law in San Francisco.
If Google doesn’t appeal, or loses the appeal, it could have a real impact on how much power companies hold over employees, he said.
“It would mean most of these Big Tech companies would have to rewrite their agreements,” Hanafi said. “They all have this broad language that employees can’t say anything about anything about their old companies.”
Employees still talk about their work at prior companies, but NDAs cast a huge shadow, Hanafi said. In his prior cases representing employees at tech firms, NDAs have made it difficult to find other employees who dealt with a bad boss or serial harasser, even if the executive’s inappropriate behavior is widely known, Hanafi said. “They’re scared they’re going to get sued.”
Jim Finberg, a partner with Altshuler Berzon, who is representing a class action pay equity lawsuit against Google on behalf of current and former female employees, said the judge’s ruling “invalidates the portions of the at will agreement that function as a de facto noncompete provision,” but does not break new ground. Rather, the decision was consistent with California’s long-standing policy to allow employees to go and work for other companies, he said.
Finberg did not read the decision as impacting other clauses of Google’s at will contract beyond employee mobility, he said. “You can talk to prospective employers about experience, I don’t see [the judge] as changing anything else.”
Google was initially successful in convincing the presiding judge to throw out most of John Doe’s claims on the grounds that the complaint was superseded by federal law. But the appellate court reversed the lower court’s ruling, allowing the case to proceed. In its opinion, the California Courts of Appeal affirmed the importance of the state’s labor laws that go further than federal laws in protecting employees’ rights to free speech. Those laws give workers in California the right to “speak as they choose about their work lives,” the court wrote. “In sum, these statutes establish as a minimum employment standard an employee anti-gag rule.”
This year, a new California law went into effect called “Silenced No More,” which outlaws confidentiality agreements for settlements involving any form of discrimination or harassment, expanding existing employee protections in the state. The bill was championed by Ifeoma Ozoma, a former public policy official at Pinterest and Facebook, who raised awareness about gender and race discrimination against Black women at Pinterest.
Ozoma, who has also advocated on behalf of other tech whistleblowers, said tech company NDAs go far beyond preventing workers from talking to the press. “You can’t speak to other employees that faced the same issues. You can’t speak to your family. You can’t answer basic questions in the interview for your next job,” she said. That impacts both employees’ mental health and their job prospects, Ozoma said.
Employees are subject to these agreements whether they have worked at a company for six months or six years, Ozoma said. “For the rest of your life, they have this power to silence you.”
The John Doe lawsuit was originally filed in 2016 and has exposed a number of Google documents to the public eye as it worked its way through the court system. In 2017, filings showed a companywide email threatening leakers, written by a former State Department special agent who led Google’s investigations team. The letter admonished employees to reconsider sharing confidential information with reporters.
The document also brought to light an internal Google program called Stop Leaks, where employees can report on suspected leakers. In 2019, depositions with Google’s head of human resources and a member of the Stop Leaks team revealed details about the way Google investigated employees who shared information about sexual harassment and a planned censored search engine in China.