Adria Malcolm
Former Pinterest employee Ifeoma Ozoma has become a leading face in the effort to prevent nondisclosure and non-disparagement agreements from silencing workers from discussing instance of workplace misconduct, such as harassment and discrimination. After Ozoma went public last year with allegations of racism and discrimination that she said she experienced at Pinterest, she has repeatedly broken her own NDA by speaking about her experience.
Ozoma sat down for a Q&A to talk about Insider's sweeping investigation into how NDAs enforce silence in the tech industry – 'A gag order for life': How tech companies use secretive legal contracts to create a culture of silence – and what's ahead in the push to change them.
Insider: What stood out to you the most from reading through some of the NDAs we analyzed?
Ozoma: Just how common the use of overbroad language is. It's templatized at this point. The point (in the article) that the introduction of technology actually made it easier to have people sign these NDAs is the same reason why we're seeing similar versions of them everywhere. In addition, I know that at least from my experience starting at Google and then going to other tech companies, that many of the same folks on the legal teams circulate between companies. So if a practice, like the use of specific types of language in a non-disparagement or nondisclosure agreement, began at one company, it's not hard to imagine someone taking the same language with them. So it's the multiplication/duplication of these practices even as companies are just starting up."
Many of the agreements we reviewed had particularly broad definitions of what's considered "confidential." Google's NDA, for example, purports to cover "proprietary information that does not legally constitute a 'trade secret,' but is made Google's property or Alphabet's property, by contract in the form of this Agreement; information that is otherwise legally protectable." What do you make of these definitions?
Ozoma: How are you supposed to understand what that means? Even lawyers don't understand what that means. As an employee, you read that, you can go pay hundreds or thousands of dollars for the opinion of counsel, and they are going to tell you the same thing you probably understood when you read it. It means everything. Anything you learned while you were employed, from anywhere, under any circumstance, can be considered confidential to them.
Read the complete NDAs Insider obtained in its investigation and see how Facebook, Google and Apple enforce silence among employees
Many of the employment attorneys we interviewed brought up the point that these agreements are so broad, but in reality, companies almost never go after workers for breaking their NDAs. The threat of litigation, of losing your job, of these liquidated damages, is sufficient. Why is the threat hanging over these agreements so effective?
Ozoma: The reason why these are included is to strike fear in the hearts of whoever is signing the document. Who they understand is always at a disadvantage. You could be, like in Francoise Brougher's case, a multi-millionaire CEO, and still not have the resources to fight a battle against a multi-billion dollar company endlessly. The threat is enough. It's not the threat of actually losing in court that keeps people silent. It's the threat of needing to hire a lawyer. Of maybe getting fired from your current job, not because of the legal dispute, exactly, but because you can't show up for work because you are being deposed. Because you have to take off time that you don't have when you need a babysitter to watch your kids...
There's so much more to lose than an actual court battle, and the companies understand that fully. Which is why they keep on using these agreements, even though portions of the agreements, as you wrote in your piece, they already know aren't legal. But who is going to battle it? You're in violation of the contract by sharing it with someone, to then have it be determined to be an illegal contract.
More than two-thirds of workers who shared their agreements with us said they weren't exactly sure what the documents prevented them from saying - or whether even sharing them was a violation of the agreement itself.
Ozoma: Unfortunately, the only way to truly get a sense of what your particular agreement says is to hire an attorney or to find pro-bono counsel… That is the only way to be certain, because the company certainly won't give you any clarification because they are the ones who wrote the vague agreement. So you're sort of screwed - period. There isn't much else you can do unless you're willing to expend the resources to get a better understanding. While the agreements are templatized, you don't actually know whether your agreement is the exact same as another employee's. Especially in the case of separation agreements, which are highly specified, or at least portions of them are specified to the situation you are in. So there isn't really a way to compare with other employees. And by comparing you would be in breach of most of them, because they clearly state you are not to share the existence of the agreement, let alone the agreement itself, with anyone.
Let's talk about non-disparagement for a minute - the 'other' type of NDA. As we reported in our story, non-disparagement agreements and nondisclosure agreements are often used together, as two sides of the same coin. How have you seen non-disparagement come up? Because I feel like sometimes it gets lost in the conversation with NDAs, which most people associate with nondisclosure.
Ozoma: That's correct. They are the two NDAs that we're addressing in the bill that I'm cosponsoring, because they are used almost always in tandem to silence folks. If you can get to an understanding of nondisclosure, there's still no way of understanding what the hell it means to actually disparage someone. If you are telling the truth about an abuse, and in your telling of that truth, you characterize your experience, saying 'It was awful to work there because X' - is that disparaging the company, its officers, its shareholders, and all of the other people who are listed in the disparagement clauses that are included in these agreements? I don't know - and most lawyers won't be able to tell you. And the company certainly won't tell you whether 'X, Y, Z' is specifically disparagement. It's one of those things where, if you took it to court, it is unlikely that there would be a ruling against a former employee as long as they were telling the truth about whatever their experience was. But you have to spend all this time and money to get to that point to then get an answer. And so what most people do is say you know what, 'I can't talk about any of this,' because under a basic understanding of what the word disparaging means, it's saying something bad about the company--not whether it's true or not.
Also read: 5 tech workers reveal how restrictive NDAs left them struggling to get a job and isolated from friends
You mentioned during a recent Tech Equity webinar that you worried about stories like yours that would never be told, and that we'd never know about publicly. Why do you think it's so important to shed light on these agreements?
Ozoma: Because there's no chance of accountability without transparency. Not to say there's always accountability, but you can't even get to the point of determining who should be held accountable and for what if people don't even know what's happening. And because of the power that employers have in this country, particularly within the tech industry, just the massive financial power they have, and the reach they have ... then coupled with the fact that health insurance almost always comes from your employer, and in the midst of a global health pandemic, people can't risk losing that for themselves and for their family members. They are left in this position where, whether or not this agreement is wrong, morally or legally...companies are in the position where, as you mentioned in your piece, they always have an upside in forcing people to sign them.
Right, a professor I spoke to for the story said there's no downside in the companies having employees sign these agreements - there's only upside.
Ozoma: So one of the things that the handbook I'm working on will cover is that, you basically make a list as an individual who has been through a traumatizing experience, where you are traumatized by whatever the harm that was done was, then you are traumatized again by losing your job, and then again by needing to find another job. But you have this agreement that you signed where, even if you have every intention of never speaking about what happened to you, then how do you answer basic questions? Say you start interviewing, and a basic question that you are asked is, 'Ok, so why are you leaving your last job?' How do you answer that honestly, without being in breach of the agreement that you signed? And then how do you know if you do decide to go ahead and speak up, that you're not getting called back just because they are not interested, versus they read this thing about you, and they don't want a "trouble-maker" at their company?
We had employees tell us they basically decided they would break their agreement during interviews, because they felt it was just such an unsatisfying answer to say "I can't talk about it."
Ozoma: You sound sketchy when you say that. Imagine if you are in the middle of a very good interview. And then the person asks, just casually, 'Oh, so why'd you leave?' and then you say 'I can't talk about it.' It makes it sound like you did something wrong.
You mentioned the handbook you are working on. Tell me about that, when it will be available and where folks can find it.
My hope is to have it available in September … It'll contain four sections. One on legal guidance. Just resources that people should consider. So everything from how do you engage an attorney, to what are the different fee structures that you can use when working with an attorney, to at what point in your experience should you start thinking about getting legal help? …
The second section will cover the media. And this is the portion that I'm working with Lioness on. And it'll basically give you an understanding as a tech worker, and the way we're looking at this is, this should be accessible to anyone across the industry. So whether you are working in custodial staff, or whether you are a senior engineer, you should have the information - everything from the vocabulary, so what does it mean to be "on background?" What does it mean to be "on the record?" How do you even understand your role as a source when you are working with a reporter? And the idea here is to help both sides of the relationship. From the conversations I've had with reporters, they think a resource like this will be useful, because they want to point a potential source to something without feeling overbearing. And the folks on the source side, I think it's beneficial for people to be equipped for the type of conversation that they feel will work for them.
The third section will cover information and physical security. So if you are working at a tech company, you are working for a surveillance company. So what does that mean when you are thinking about whistleblowing? Or when you are thinking about pursuing legal action against the company, but you are still using their laptop as your primary device. Or you are using their phone, or you are on their internet plan. What are the types of things you should be thinking about?
And then the final portion will be a deep dive, that I hope to grow over time, of whistleblower stories. Because even the best reporting is still just the tip of the iceberg for any one story. You could have a long profile done - it's still not going to cover what it felt like for you at the moment you realized you were in a bad situation up through what it was like after you went public. I just want an opportunity for people to be able to tell their stories in their own words. And I'm working with the Whistleblowing International Network on that.
It's something I'm really excited about, and I'm hoping will be helpful beyond just the tech industry.
It's interesting for me personally, in particular when you talked about the source and the reporter dynamic. Covering tech for the last decade, I'm often asked by sources 'I don't know what I should do here, I have this NDA…' and it can create an awkward dynamic. Of course, like I told the people who are in this story anonymously, I told them 'Look, I can't give you advice. I can't tell you what to do.' Obviously, what I'm doing as a reporter is I'm trying to tell truthful, impactful stories. But it can be tough, because for many (sources) they feel like they don't have anyone sort of in their corner - it can be very lonely.
Ozoma: Yeah, the tagline I'm using for the handbook is 'Preparedness Is Power.' The reason for that is I actually don't think, and I'm going to make this very clear on the website and to anyone who uses the handbook, that the right decision is to whistleblow for everyone. The right decision is whatever works in your particular context and your situation. But you cannot get to that decision without being fully informed of what your options are. So what all this is doing, is helping to level the playing field as much as is possible in a scenario where you are, as an individual, going up against billions of dollars worth of resources. And I think we are all better off when we have whistleblowers who are as prepared as they could be for the situation. And when we have folks who decide, 'You know, actually now is not the time. But maybe later.' And they understand why they are making that decision.
Many of the people we spoke to said they are following SB 331, the bill you cosponsored that could be on the move again next month. Tell me about what you're hoping will happen from here with the Silenced No More Act.
Well I'm certainly hoping for passage and for it to be signed by Governor Newsom, hopefully before his recall election date. But what we're doing and what we are preparing for is to have tons of conversations with Assemblymembers, once they are back from their summer recess, ahead of a hopeful vote in August. And after that vote, if it's passed on the Assembly floor, then it will go back to the Senate for conference. … And then from there, if it's passed, it would go straight to the governor's desk. And he would have the opportunity to sign it, and hopefully make it law starting January 1st, 2022.
You mentioned earlier the power of accountability. Can you tell me about what happened earlier this month with the Expensify CEO at the Protocol event?
Yeah, that was sort of me being the 'always ask the question' person I've always been (laughs). I was on a panel with the Expensify CEO David Barrett, and I decided to ask him, he had stated throughout the panel what his morals are, what he believes are the values of the company, which was the premise of the conversation that Protocol was holding. So I decided to ask him whether he was willing to change Expensify's global employment contracts and agreements to include the language from the bill that we all know will make clear to people that they are allowed to talk about experiences that they've had. The language itself is one sentence that is in the bill … that sentence is "Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination, or any other conduct that you have reason to believe is unlawful." And I threw it in the chat, so that he had it in writing as well, and he agreed on the spot to do it and followed up just a few hours later on Twitter, to say that his corporate counsel had agreed and were in the process of doing it.
It's the sort of real-time accountability that I haven't seen unfortunately in the tech space, certainly not within the tech accountability movement. And it's the sort of thing that I think we need. Because the state level action is important. California, I mean, is one of the most important states in the world … So passing a bill in California is just incredibly important, and I will never downplay that and am so proud of my role in it. But there are workers beyond California who also need protections. And what I don't want is a situation where someone has a manager in California, but they are based in New York. And all of a sudden, January 1st, their manager is protected but they are not. So what I'm pushing for now, along with Open Mic, and Whistle Stop Capital, is to engage companies, via their shareholders, to include that one sentence in all employment and contracting agreements going forward. …
I think what's so beautiful about the sentence, and I really love words, is that you then have to dig deep for an explanation as to why that sentence is offensive. Is it the harassment part? Is it the discrimination part? Is it the unlawful conduct part? I want anyone who says 'No,' to really think about what their response would be. Because what we are doing is, we are actually saying we encourage the use of confidentiality agreements outside of this context, but you are going to need to explain why you need people to be quiet about this stuff.
You can read our full investigation into NDAs if you're an Insider subscriber:
We reviewed 36 NDAs from major tech companies and discovered how far Silicon Valley's giants will go to silence and control their employees
If you'd like share your story as part of Insider's ongoing coverage of NDAs, reach out directly to reporter Matt Drange by email - [email protected] - encrypted text via Signal, WhatsApp or Telegram: +1(626) 233-1063, or snail mail Attn: Matt Drange, Business Insider, 535 Mission Street, 14th Floor. San Francisco, CA 94105. You can also contact Matt via SecureDrop.