A new bill in California seeks to protect workers against nondisclosure agreements (NDAs) and empower them to speak out about alleged acts of discrimination, including racism. If passed, advocates say, the legislation would represent a step forward in the fight for equity and labor rights, with potential nationwide impact in the tech industry given the large number of companies headquartered in California.
The legislation, known as the Silenced No More Act, was introduced by California state Sen. Connie Leyva, a Democrat from Chino, on Monday and seeks to expand protections against secret settlements to cover all forms of harassment or discrimination under California law, including on the basis of race, ancestry, religion or gender identity.
Current laws, passed in the wake of the #MeToo movement, allow California workers to speak out about gender-based discrimination cases, opening up the possibility of holding perpetrators accountable, but they do not mention other types of discrimination.
The Silenced No More Act would prevent workers from being forced to sign nondisclosure and nondisparagement agreements, and ensure that those who have been subject to any kind of discrimination and want to speak out can do so freely and without retaliation.
It also intends to expand the prohibition on confidentiality and nondisparagement clauses to cover employment agreements that tie these clauses to severance compensation.
The legislation will “empower survivors to speak out — if they so wish — so they can hold perpetrators accountable and hopefully prevent abusers from continuing to torment and abuse other workers,” Leyva said in a news release Monday.
In 2018, in the wake of the #MeToo movement, the state legislature passed a law known as the STAND Act (Stand Together Against Non-Disclosures), also authored by Leyva, which bans nondisclosure agreements in cases of sexual harassment, sexual assault and sex discrimination, after it was revealed that several victims were impeded from coming forward because they had signed these kinds of settlements.
In Washington, lawmakers passed new regulations in 2018 prohibiting nondisclosure agreements that prevent employees from discussing workplace sexual harassment or assault. The law covers disclosures of sexual harassment and sexual assault at work or work-related events and between employees or between an employer and an employee. The law makes an exception for settlement agreements related to sexual harassment allegations; those agreements can contain confidentiality provisions.
Since the 2018 California law’s passage, advocates have argued that NDAs are a silencing mechanism that more broadly help perpetuate hostile work environments by keeping complaints hidden from the public.
“For far too long, NDAs have been used by tech companies and other industries to prevent workers from speaking out about racism, harassment and discrimination,” Jessica Ramey, senior counsel at Equal Rights Advocates, an organizational co-sponsor of the bill along with the California Employment Lawyers Association, told The Washington Post.
They are “gag orders that shield employers from public accountability,” she added, arguing that they have “kept women and people of color back for far too long.”
The bill comes after monthslong efforts led by Ifeoma Ozoma, who worked closely with Leyva in drafting the legislation. Ozoma gained national recognition last year when she and Aerica Shimizu Banks publicly alleged that they had been victims of racial discrimination at Pinterest, where they were employed as public policy officials.
Details about the alleged abuse, including being underpaid and subject to racist comments and retaliation, helped disrupt Pinterest’s carefully crafted public image as a kinder social media company that championed women in leadership and racial diversity.
Although the company has declined to comment on the allegations, the women eventually settled their claims.
Ozoma said she benefited and felt protected by the STAND Act when she decided to go public against Pinterest, but soon learned that it did not cover her complaints of racial discrimination.
“I am a Black woman, I can’t separate both things. And so to have a law that protected me in speaking about gender discrimination at Pinterest but not the race discrimination felt wrong to me,” she said in an interview with The Post.
As a response to growing worker activism in the tech industry and legislative efforts, companies have pushed for the use of all sorts of legal tools to keep workers silent, such as mandatory arbitration, NDAs and nondisparagement and confidentiality clauses.
In this environment of silence, reinforced by social norms and legal barricades, whistleblowers, advocates and activists like Ozoma have helped shed light on companies’ malpractices and sometimes illegal behavior, while trying to change the system.
Ozoma hopes the bill will pass and be signed into law by Democratic Gov. Gavin Newsom, affecting California’s 40 million people. Although the bill is not retroactive and does not protect those who have signed restrictive NDAs in the past, she said it will hopefully bring an “extra layer of confidence” for those who decide to break those agreements, since the law will make it much harder for employers to retaliate against them considering the backlash they could face in the “court of public opinion,” she said.
In the past, the pack of #MeToo bills prompted criticism from business groups, including the California Chamber of Commerce, which argued that the laws would lead to confusion and excessive litigation.
Ozoma expects there will be similar pushback from companies and trade associations, but she believes the current political climate, influenced by the Black Lives Matter movement, which many of these tech companies have publicly supported, will make it more difficult for them to oppose these legislative efforts.
If not, she said, she is ready to call them out.
“If you believe that your company should retain the right to silence workers related to harassment and discrimination they have suffered, then you should stand behind that argument and come forward to explain why,” she added.
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Seattle Times business reporter Heidi Groover contributed to this story.