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Protocol | Policy

Tech giants are staying silent on California’s anti-NDA bill

Facebook, Apple, Google and Twitter are keeping quiet about the Silenced No More Act, even as a major trade organization fights against it.

California’s state assembly room, empty

California's state assembly could soon pass a bill to prohibit certain types of NDAs.

Photo: Slobo/Getty Images

A California bill to outlaw non-disclosure agreements that prohibit employees from talking about illegal harassment and discrimination is inching toward a final vote in the California legislature after clearing a key committee this week. But many of the top tech companies that call California home are staying silent on the bill — even as their major trade association in the state vocally opposes it.

The Silenced No More Act, introduced by state Sen. Connie Leyva this year, broadens a law called the STAND Act that freed workers to talk specifically about sexual harassment and gender discrimination. Facebook, Google and Twitter all told Protocol they had no position on the bill. Apple did not respond to Protocol's request for comment. Two leading tech trade groups, Internet Association and TechNet, also declined to take a position when asked by Protocol.

Even as some of California's most powerful companies withhold public comment on a law that would affect not just their full-time staff, but the armies of contract workers whom they indirectly employ in the state, the California Chamber of Commerce, which represents 14,000 businesses including Facebook and Google, has mounted a full-throated opposition campaign against the bill.

Their argument: The bill will inadvertently hurt employees by discouraging employers from paying severance packages altogether.

"This double threat of costly litigation for offering a severance agreement that potentially violates any of these requirements will certainly discourage employers from offering severance packages," CalChamber and other trade groups wrote to two Assembly committees this month in a letter reviewed by Protocol. "The point of a severance agreement is to eliminate the risk of claims and litigation, not invite multiple threats of litigation." CalChamber did not respond to Protocol's request for comment.

To Ifeoma Ozoma, a former Pinterest employee who helped draft the law after speaking out about her own allegations of discrimination and retaliation at Pinterest, the Chamber's logic is strained. The law, she said, would only prohibit NDAs that prevent employees from talking about "unlawful acts," and would still allow companies to reach agreements with employees to release their legal claims.

"Companies aren't just paying for people to be quiet. They're paying for people not to sue them," Ozoma said. "If you believe your severance payment is unlawful in and of itself, that's a conversation you should be having among yourselves."

Business groups made much the same case before the passage of the STAND Act, but both Ozoma and Leyva said they've yet to see any evidence that that law has had an impact on severance payouts. "This is the same argument they made with [the STAND Act] and none of it has come to light," Leyva said.

Ozoma, who worked at both Facebook and Google before Pinterest, called tech companies' reticence on the bill "curious" given their recent statements on issues related to race in America. The Silenced No More Act is the first bill that would give people the ability to talk publicly not just about gender discrimination, but also about racial discrimination, even if they're under an NDA.

"They've made a lot of statements about how they support Black lives, women and all their diversity initiatives," Ozoma said. "I just think it's really curious that they've been silent about an issue that cuts to the heart of what they claim their morals are."

Leyva said the industry's silence "speaks volumes" and suggests they're "wanting to just stand back and let the Chamber do the dirty work for them."

CalChamber's position on the bill doesn't necessarily reflect the views of all of its members, of course. But for members who don't want to face the public relations backlash for speaking out against the bill themselves, the Chamber provides a convenient cover, Ozoma, who worked for the policy teams at Facebook, Google and Pinterest, said.

"They're pretty vocal about legislation. They have a whole team of people tracking legislation, so it can't be that they don't know this is happening," she said. "I really think the silence is not accidental."

NDAs are hardly scarce in the tech industry; visitors can barely walk in the door at top tech companies without signing away their right to talk. For employees, NDAs are similarly pervasive. And yet the only tech company to say anything publicly about the bill has been Pinterest, which has sought to answer for the issues Ozoma and her former colleague Aerica Shimizu Banks described regarding their time at the company.

Pinterest told Protocol in April — the same day Ozoma published an op-ed about the bill in The New York Times — that it supports the Silenced No More Act and would no longer impose agreements that prevent employees from talking about their experiences. But Pinterest didn't go so far as to release former employees from such agreements, and the company hasn't spoken in support of the bill at any of its recent hearings. (Pinterest didn't respond to Protocol's request for comment.)

Google spokesperson Jose Castaneda told Protocol that the company wasn't involved with the CalChamber's decision to oppose the bill, but Google hasn't come out in support of it either. Google said that it has not historically asked employees to sign NDAs that prevent them from talking about workplace conditions.

But the same hasn't been true for Google's contractors, some of whom recently sued Google and one of its staffing firms for the right to discuss their wages and working conditions. As part of its settlement with workers, Google promised to put signs up in its data centers, alerting workers that they can discuss wages and working conditions "with other employees."

Facebook's content moderators in Ireland, meanwhile, told the Guardian in February that they were warned not to break their NDAs when describing COVID-19 working conditions during a meeting with the country's deputy prime minister. Some Facebook moderators in Florida have in the past put themselves at legal risk, violating the terms of their NDAs to speak to members of the press. While the Silenced No More Act would only apply to workers in California, lawmakers in Ireland, where many tech giants have their global headquarters, are considering a similar law with Ozoma's input.

The California Assembly still needs to hold a vote to pass the bill, and the Senate will have to sign off on any amendments they made before it heads to the governor's desk. Leyva, for one, doesn't anticipate any issues. "Anyone who voted for it the first time in the Senate should have no problem voting for it again," she said.

Protocol | Workplace

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Photo: Bloomberg/Getty Images

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The company's stock price has tumbled nearly 10% this week, and CEO Bobby Kotick acknowledged in a message to employees Tuesday that Activision Blizzard's initial response was "tone deaf." Meanwhile, there has been a continuous stream of new reports unearthing horrendous misconduct as more and more former and current employees speak out about the working conditions and alleged rampant misogyny at one of the video game industry's largest and most powerful employers.

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