Monday, December 12, 2022

A tale of two employee nondisclosure agreements

"It was the best of times, it was the worst of times…." This is perhaps the most famous opening line in the history of literature, A Tale of Two Cities, by Charles Dickens. It's also an apt description of how two tech giants—Apple and Twitter—recently handled the issue of employee nondisclosure agreements.

On the side of wisdom, light, and hope — Apple, which just announced that Apple will no longer ban employees from speaking out about workplace harassment, discrimination, and other workplace issues, after an independent review of its use of employee nondisclosure agreements.

On the side of foolishness, darkness, and despair — Twitter, whose owner and CEO, Elon Musk, just told employees that he would sue any employee who violates their NDA by speaking about working conditions at Twitter. I guess the first rule of Twitter is, "No one talks about Twitter." The irony? Tech reporter Zoë Schiffer broke this news on Twitter.

Aside from adding yet another terrible piece of employee relations on a pile that's already higher than a stack of 44 billion dollar bills, Twitter's "We'll sue you" edict is legally problematic for two reasons.

1.) The National Labor Relations Act grants non-supervisory employees the right to talk between and among themselves about terms and conditions of employment (known as protected concerted activity). I have good idea that if asked, the NLRB would take a not-kind look at Musk's attempt to scare employees into silence about the terms and conditions of employment at Twitter.

2.) Regarding allegations of sexual harassment and assault, Twitter's NDA (and Musk's threatened enforcement of it) violates federal law. President Biden signed the Speak Out Act into law last week, which limits the use of nondisclosure agreements to silence victims of workplace sexual harassment and assault (provided that the agreement was signed prior to the dispute arose). If Musk intends to use Twitter's NDA to prevent employees from speaking out against sexual harassment or sexual assault at Twitter, he'd be violating the Speak Out Act.

The answer to employee complaints about workplace issues isn't preventing them from speaking out. It's using them as an opportunity to address the issues and make your company better. In a world of Elon Musks, be a Tim Cook. Or, to use another famous Dickens quote, also from A Tale of Two Cities, "A day wasted on others is not wasted on one's self."