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Can Tech Workers Complain About Sexual Harassment? Depends What They Signed.

Nov 9, 2017 / Media Coverage / Buzzfeed — Davey Alba

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 keep everything from product plans to allegations of abuse under wraps.

But amid growing concern about sexual harassment in key American industries, iconic tech companies like Amazon, Apple, Google, Microsoft, Facebook, and Uber are largely silent about 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 have been reports of allegations of sexual harassment or discrimination at all of these companies (Amazon, Apple, Google, Microsoft, Facebook, Uber), and they raise questions about legal agreements that might prohibit employees from publicly speaking about them.

BuzzFeed News asked Amazon, Apple, Google, Microsoft, Facebook, and Uber if any current or former employees were subject to these kinds of agreements and whether the companies would release any such employees from them. None of the companies addressed the question head-on, though three — Microsoft, Google, and Amazon — suggested that they wouldn’t throw up obstacles to women who want to speak out.

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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.

Employment lawyers say that companies could easily free victims of the obligation to stay silent.

“Any company in America is within its rights to go 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 important 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 have signed settlements may not have as much control over workers’ speech as their employees believe. NDAs that some tech industry employees are asked to sign after accepting a new 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 all noted 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 think they are legally required to stay silent about harassment they’ve experienced, Romer-Friedman said. “Because of how broad they are, they make people think that they can’t complain or tell their story … I can see an ordinary worker thinking that their NDA that covers general matters — company secrets or proprietary information — could even extend to workplace issues.”

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If general NDAs can limit employees from speaking out in practice, it’s the additional ones employees often sign as part 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 do keep 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.

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When pressed about whether the companies would release current and former employees from any confidentiality provision or NDA used in a settlement agreement, all companies declined to answer the question except 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 away 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 all six companies declined to answer BuzzFeed News’ question about releasing employees from settlement-specific NDAs, some implied, as a defense, that they didn’t have to — because there are already formal ways to lodge a complaint with federal and state governments, in which such confidentiality provisions would be invalidated. “All employees, regardless of whether they have signed a separation agreement, can always file formal complaints with state or federal nondiscrimination agencies,” reads Apple’s statement, in part.

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 make formally filing a claim seem like a far less attractive 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.

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To read the full article and full company statements, please click here.

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