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New California law would give wronged workers a way out of NDAs

Ex-Pinterest employee Ifeoma Ozoma helped draft the bill that would allow workers to speak out about all forms of covered workplace discrimination, not just sexual harassment.

New California law would give wronged workers a way out of NDAs

California State Senator Connie Leyva introduced the Silenced No More Act on Monday.

Photo: Gina Ferazzi/Getty Images

Ifeoma Ozoma took a huge risk last year when she publicly alleged that she faced racist and sexist discrimination during her time at Pinterest. She knew Pinterest could sue her and her colleague Aerica Shimizu Banks for speaking out about their experiences as Black women at the company. But she also knew that a new law called CCP 1001 protected her right to speak out about sexism she faced at Pinterest, even if she was bound by a non-disclosure agreement.

But Ozoma soon realized that the law, passed in the wake of the #MeToo movement, has serious limitations. While it specifies that California workers can speak out about any sex-based discrimination, it says nothing about other forms of abuse, like racism.

"If Pinterest decides to sue me, they'd have to state affirmatively that the discrimination I faced was not because of my sex — it was because of my race," Ozoma said. "This has been the only time being a Black woman was a double-bind for the other person, not for me."

Now, Ozoma is helping lead an effort to dramatically expand the law. She's been working for months behind the scenes with employment rights advocates and the office of California State Senator Connie Leyva, who introduced CCP 1001 in 2018, to put together legislation that would allow every person in California to speak out about workplace abuse, even after signing an NDA.

Leyva introduced the bill, the Silenced No More Act, or SB 331, on Monday. She told Protocol that she anticipates that the colleagues who voted for her last NDA bill will vote for this one. She admitted that COVID-related issues will take precedence in the California legislature during the new year, "but there are issues that are just as important – like discrimination and harassment, especially based on age and race. If we don't pass legislation, that's another year that goes by that people are mistreated in the workplace. We don't want people to be silenced."

Jess Stender, a senior counsel with Equal Rights Advocates, said Ozoma's experiences "really shows why we need to prohibit these gag orders for all forms of discrimination."

"A worker who has been subjected to discrimination or harassment in the workplace has already suffered a trauma," Stender said. "So to impose a gag order on them and tell them 'you cannot talk to anyone about this traumatic incident you experienced' is to inflict yet another harm on them."

Leyva's legislation would cover every discrimination category under California law, including race, ancestry, religion, age, disability, sexual orientation, gender identity and others. If it passes, it could help break the tech industry's deeply entrenched culture of silence around the treatment of marginalized workers.

Right now, NDAs are nearly ubiquitous in Silicon Valley; many tech giants even require visitors to sign one before stepping foot in the office. Those agreements have become even more stringent as tech worker activism has grown, lawyers told Protocol last year. Advocates and workers have argued that those NDAs prevent real change from happening, gagging workers who would otherwise want to speak out about how they were treated at the tech behemoths.

The legislation comes at an inflection point for the industry, as Google faces a wave of departures of high-profile employees of color, including AI ethicist Timnit Gebru and diversity recruiter April Christina Curley, who say they faced racism from their managers during their time at the company.

Meredith Whittaker, who led organizing efforts at Google before she left in 2019, said the public stories about mistreatment at Google are only the tip of the iceberg. She's hopeful the California legislation could empower scores more workers to add their voices to the conversation.

Whittaker said when she was at Google, she and other worker activists would regularly hear from employees who desperately wanted to share their stories. "We'd have Signal calls with people about the experiences they'd had, and oftentimes folks would finish it up with, 'I wish I could talk about it. I'm afraid. I don't want to get sued. I signed an agreement,'" Whittaker said. "It's really clear that being able to tell these stories is key both for healing from these terrible experiences, which can be severely traumatizing, and is key for beginning to understand what it is we need to change."

The business lobby, including the California Chamber of Commerce, fought back hard against the California bills passed in the wake of the #MeToo movement, arguing the legislation could lead to confusion and excessive litigation. Ozoma is anticipating a similar fight this time around.

"The only people who will not be supportive of this are the general counsels at companies who have been invested in keeping these forms of discrimination silent," Ozoma said. "What I would love is for any company or organization who opposes [this legislation] to put out a statement explaining why the forms of discrimination they're employing in their workplace should be kept quiet."

Amid the Black Lives Matter movement 's reinvigoration over the summer, every major tech company issued a statement pledging their support for communities of color, flooding civil rights groups with cash and launching brand-new lobbying efforts in support of police reform. This legislation could provide the latest test for the industry's commitment to racial justice and equal rights, Ozoma said.

It could be particularly important for tech's "shadow work force": the contract and temp workers who often can't afford extensive legal fees. "Missing a paycheck may mean living in your car," Whittaker said of tech's contract workforce. "Those are the folks we really need to protect with bills like this."

Ozoma believes Leyva's legislation has a good shot of passing, as long as the California legislature decides to take up bills that aren't directly related to the pandemic over the next few months. But the ultimate goal for activists like Whittaker and Ozoma is federal legislation requiring a slew of changes to NDAs, including an end to forced arbitration agreements and to any clauses that seek to silence workers. After all, Leyva's legislation would only protect California workers.

"Tons of folks are focused on tech accountability right now," Ozoma said. "You cannot have accountability unless you know what is going on. If people are silenced legally from speaking about their experiences, we will never be able to address what's happening."

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