Can Tech Workers Complain About Sexual Harassment? Depends What They Signed.
BuzzFeed News asked major tech companies if they’d pursue legal action against NDA-bound employees who speak out about workplace harassment or assault. Here’s what they said.
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.
“We don’t and we won’t tolerate sexual harassment or assault, and we don’t and we won’t allow nondisclosure agreements to become a tool to enable those who engage in such conduct to continue with this type of wrongdoing,” said a Microsoft spokesperson.
“We encourage our employees to report concerns about harassment,” Google spokesperson Gina Scigliano told BuzzFeed News. “Our employment agreements don't prohibit anyone from talking publicly about instances of harassment.”
"Employees are always free to share information about their work environment — whether it’s positive or negative," an Amazon spokesperson told BuzzFeed News.
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.
"They make people think that they can’t complain or tell their story."
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.”
Civil rights attorney Gloria Allred told BuzzFeed News that many employees don’t necessarily understand what they’re agreeing to when they sign standard NDAs. “I would say it’s fair to say most people give it very little — and perhaps no thought — when they sign,” she said.
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.
“The bottom line is it’s a lot of risk to the employee,” said Allred. “There are lots of people out there now naming all kinds of names, and they’re taking a risk of being sued. That may be a risk they’re willing to take, or they may be unaware of the risk.”
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.
"They’re not going to suddenly say, ‘We’re going to be on the side of victims.'"
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.
Ultimately, Allred said, NDAs may become more prevalent as companies do what they can to protect themselves at a moment when sexual assault is central to the national conversation. “Do I think they’re going to start changing NDAs?” she asked. “No. If anything, if they haven’t thought of having an NDA, they may decide, ‘Wait, maybe we should have one for our company.’ Or, ‘we need to review our NDA to make sure it’s tougher.’”
Instead of releasing employees covered by settlement NDAs, Allred said, companies could clamp down. “They’re not going to suddenly say, ‘We’re going to be on the side of victims, we don’t care about our bottom line, they can say or do anything they want, and that’s okay with us,’” she said. “The companies are always going to look out for their self-interest.”
Here are the companies' full statements in response to BuzzFeed News' query:
Amazon sent BuzzFeed News the following statement: "The NDA that all employees sign does not have anything to do with whether an employee can speak up about any concerns related to their work environment. It only requires that they not share confidential business information. Employees are always free to share information about their work environment — whether it’s positive or negative."
Apple sent BuzzFeed News the following statement: "At Apple, we believe deeply that everyone should be treated with dignity and respect and we have strong policies in place to reinforce that. We know that innovation thrives in an open environment free of harassment or discrimination. Whenever employees raise concerns, we investigate the allegations and take appropriate corrective action including termination. Current and former employees who have not signed a separation agreement are free to speak publicly about their workplace experiences. And all employees, regardless of whether they have signed a separation agreement, can always file formal complaints with state or federal nondiscrimination agencies.”
A spokesperson from Facebook confirmed that the company has restrictions on sharing company confidential information such as new products or financials, but nothing that would prevent people from sharing personal circumstances with the press. The spokesperson went on to note that Facebook has a strict anti-bullying and harassment policy, with multiple channels available to employees who would like to report behavior without fear of repercussions.
A Google spokesperson sent BuzzFeed News this statement: “We encourage our employees to report concerns about harassment. Our employment agreements don't prohibit anyone from talking publicly about instances of harassment.”
Microsoft sent the following statement: “We don’t and we won’t tolerate sexual harassment or assault, and we don’t and we won’t allow non-disclosure agreements to become a tool to enable those who engage in such conduct to continue with this type of wrongdoing.”
Uber told BuzzFeed News that its confidentiality provisions for employees do not prohibit them from speaking out about issues of harassment, which has been well-documented publicly.
BuzzFeed spokesperson Matt Mittenthal told BuzzFeed News: “The agreements we ask our employees to sign concern proprietary business information. We do not, and would never, ask a victim to remain silent about harassment in any form." Mittenthal added that BuzzFeed does not use settlement agreements in cases of alleged sexual harassment or sex discrimination at the company, so there is no NDA related to harassment or discrimination to release employees from.
This story has been updated to reflect an official comment from Amazon.
During a Jan. 2018 interview with Recode’s Kara Swisher, Google CEO Sundar Pichai was asked whether Google planned to “release the women at Google from their non-disclosures that you may or may not have signed so they can tell their stories?” Sundar responded by saying that he has, “no issue with that. I don’t think we typically do non-disclosure agreements around these types of issues.” Subsequently Google clarified its original position, telling Buzzfeed News that it does not have employment, NDA or settlement agreements that would prevent an employee from publicly discussing any instance of harassment.