Last month, California tech activists secured a significant victory, in their fight to have their voices elevated above the pervasive culture of silence and non-disclosure, surrounding harassment and discrimination. California Governor, Gavin Newson, signed Senate Bill 331, more commonly known as the Silenced No More Act, into law.
What is the Act?
With much of their value coming from trade secrets, intellectual property and proprietary technology, the tech industry amongst others, are known for using non-disclosure agreements (“NDAs”) to keep their secrets safe, but when faced with accusations of discrimination or harassment, increased accusations emerge regarding the approach of tech giants, in particular, that they often use these agreements as a means to prevent employees from raising legitimate concerns and speaking out about their experiences.
The new Act offers greater protections against secret workplace settlements, expanding upon existing law that prevented the use of NDAs for exiting employees in sexual harassment cases.
Now, the law will include other forms of discrimination, such as race, sexual orientation, age, disability, or religion. The Act will apply to all California industries and larger firms with bases in the state will need to comply.
Who is behind it?
The Act was spearheaded by Ifeoma Ozoma, a former Pinterest Policy Manager and whistle-blower, who broke her own NDA to speak out about her claims of racial discrimination while at the company. In doing so, she noticed the gap in legislation, as it only protected those who had suffered sexual harassment, or discrimination. Now that the bill has been passed, she says, “anyone in California, regardless of the language in an NDA [can] speak about their experiences with discrimination, harassment, or any other unlawful conduct. Tens of millions of people will be silenced no more, I can’t imagine a better way to have turned pain into progress.”
California Senator Connie Levya put her vote behind the Act and stated, “it is absolutely unacceptable for an employer to try to silence a worker because they were a victim of any type of harassment or discrimination.”
She went on to describe the importance of speaking out and holding businesses accountable, with a view to prevent future abuses by the same offending companies. Even before the bill’s passage, Pinterest agreed to stop making employees sign NDAs. Although, other giants have not moved to change the language of their employment agreements, despite pressure from activists and shareholders.
About the paWhat does this mean for companies with offices in California and beyond?
The Act speaks to the growing trend of accountability in the wake of the #metoo movement and the growth of Black Lives Matter. It compels companies in the Golden State to address ineffective workplace cultures, specifically centred around discrimination.
The Act comes into effect on 1 January 2022, so California based companies are faced with an impending threat of exposure and a potential flood of accusations when the wall of silence is lifted, in just a few short months.
Most prudent California companies are likely to have already begun the process of self-evaluation. Reflecting on whether their policies and practices relating to discrimination, of all forms, are effectual. Furthermore, businesses will need to find a balance between the support provided to employees and the protection they need, with processes that support their reputation and mitigate business risks.
Given the influence California has in the US and internationally to set the tone and direction of legislation, it is likely similar acts will begin to emerge, or current legislation will gain ‘more teeth’ in the protections it affords employees, in the UK and beyond.
These reviews will grow increasingly more prevalent across the globe.
What action can employers in California take now?
We recognise that laws that enforce change regarding the parameters within which employers operate, can have a profound effect on workplace strategy, skill, resources and culture.
Like other emerging socio-cultural trends and themes around the world, as well as new laws that are likely to come into effect in the future, it is important that employers are well prepared and positioned to navigate the change seamlessly.
Businesses who are proactive are more likely to be successful when it comes to change management, rather than being forced to assimilate to new ways of working that new legislation may dictate, in a vacuum or in a pressured, time-sensitive environment.
We recommend that employers based in California, undertake the following steps now, ahead of January 2022.
- Obtain a real lens – Gain perspective of where you are with respect to your workplace culture, staff engagement and sense of belonging. This real lens will allow you to identify any tensions, or themes, related to your workforce and deploy targeted responses to manage and diffuse those tensions before they escalate.
- Compare current and future state practices – Build an understanding of the changes expected by the implementation of the Act and what that means for you practically speaking, as an employer, (such as changes to policies and processes). Consider where the gaps in knowledge are, understanding and support, then build a plan to resolve those gaps promptly. Ensure that the right people are in the room discussing what changes are required. Often, senior leadership will not have sight of on the ground challenges that other employees may experience and navigate daily, (such as HR and your employee resource groups).
- Communicate with authenticity and meaning to your leadership and staff – Leaders must understand the conceptual and practical changes enforced by the Act. They must know who they can lean on for support. And, they must have a comprehensive understanding of the consequences, should they fail to support change. Allow leaders time and grace to ask questions without judgement to deepen their learning. In addition, it is of equal importance to your workplace culture, the sense of belonging and trust employees feel, that communication in advance of the Act and thereafter takes place. All staff will need to know exactly which changes will be made to processes and policy. Remind employees how to raise complaints or concerns more informally before escalation, as it will allow you, as the employer, to take the necessary steps to resolve issues and mitigate risks promptly.
- Devise a remedial strategy plan – If following the implementation of the Act you see a rise in complaints and issues, we recommend that you assess the themes that are emerging. Then, consider what immediate actions you can take to mitigate the issues. This could include workshops, training, or even demographic-specific wellbeing support.
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About the author
Roxana Murphy has an in-depth litigation and privacy background representing medium to large sized business clients as an insurance defence lawyer. She’s defended an extensive caseload of civil claims for breach of contract, vicarious liability, premise liability, and data privacy violations across a broad spectrum of industries from retail, entertainment, technology and construction. Roxana enjoys building positive rapport with clients and is devoted to advocating for their interests in court.
Roxana’s experience also involves advisory work with respect to privacy law, corporate governance and business formation and restructuring. In her role as Deputy Chief Counsel of the Business and Trademark Legal Aid Clinic, Roxana underwent detailed investigations into the client’s business practices and advised on compliance with respect to employment, business, IP and cybersecurity laws and regulations. In this regard, she is recognised for her thorough risk analysis and innovative problem solving.
Roxana holds two undergraduate degrees from Louisiana State University and later obtained her Juris Doctorate with cum laude honours from Southern Methodist University, Dedman School of Law in Dallas, Texas. She is a U.S. qualified attorney with admission to the State Bar of Texas. She has a uniquely diverse background having lived in Italy, Spain, Germany and multiple states across the U.S. but has happily made London her new home. She is fluent in Spanish and proficient in Italian and despite her worldly travels, she holds firm to her Latinx roots and enjoys dancing salsa, merengue and bachata in her spare time.