In a proxy statement ahead of its annual shareholders’ meeting, Google stated that employees who have signed confidentiality agreements can still talk about assault, harassment, discrimination, or retaliation they experience at the workplace. The announcement marks Google’s clearest stance yet on its non-disclosure agreements (NDAs), and is another victory for advocacy groups that have been working to eliminate workplace NDAs, which have become increasingly restrictive and prevalent over the past several years.
Google’s statement makes clear that employees are allowed to discuss working conditions and wages with each other, and that any employees who have signed settlement or severance agreements—even those containing NDAs—are still allowed to talk about any sexual assault, discrimination, harassment, or retaliation they experienced.
Though the statement did not constitute a concrete policy change, it offered an explicit promise that Google employees may now hold the company to, should they ever bring claims against the company.
The inclusion of language regarding the company’s concealment clause and NDA policies was prompted by a shareholder proposal that would have required Google to issue a public report studying the impact of NDAs on harassment and discrimination claims. Such a request came on the heels of states such as California and Washington passing “Silenced No More” laws, which have barred employers in each state from using NDAs to stop employees from publicly discussing harassment, discrimination, retaliation, and other illegal workplace practices.
If you believe you have been subjected to illegal workplace practices and are being prevented from discussing your experience because of an agreement from your employer, contact Teukolsky Law today for a free consultation.
In recent years, California lawmakers have taken on sexual harassment and assault with a series of changes to state law. In the wake of revelations about how institutions and companies keep sexual misconduct and abuse under wraps—from the Catholic Church sex abuse scandal to Harvey Weinstein—the California legislature has largely taken confidentiality agreements surrounding sexual misconduct off the negotiating table. The legal developments aim to shed light on sexual harassment and violence by preserving the ability of victims to speak about their experiences, despite a settlement. Here is what you need to know:
1) California law prohibits confidentiality in settlement agreements in civil cases where the underlying conduct could be criminally charged as a felony sex offense. The prohibition applies not only to cases related to workplace sexual assault, but to all civil cases. Sexual conduct that could prosecuted as a felony includes (among other acts): rape, and sexual assault where the perpetrator used violence, restrained the victim, or fraudulently deceived the victim into believing the touching was for a professional purpose.
Where the conduct you allege rises to the level of felony sexual assault, your attorney could be subject to professional discipline by the California State Bar for demanding confidentiality or advising you to agree to confidentiality in a settlement agreement.
2) California law limits provisions in settlement agreements that prevent disclosure of allegations related to sexual harassment, sexual assault, sex-based discrimination, and retaliation. If you have filed a complaint in court or with an administrative agency (such as California's Department of Fair Employment and Housing), the company cannot require you, as a condition of settling your claims, to stay silent about the facts described in your complaint.
An exception may be made where the survivor of sexual harassment wishes to maintain the confidentiality of their identity. At the survivor’s request, the settlement agreement can shield the survivor’s identity and facts that could lead to discovery of her identity. It is also permissible for settlement agreements to require the parties’ confidentiality about the dollar figure of the settlement.
If you have experienced sexual assault or sexual harassment or sexual assault in the workplace, contact us today for a free consultation.
Lauren Teukolsky is the founder and owner of Teukolsky Law, A Professional Corporation.