The food industry, like all others, suffers from employee abuse, including sexual harassment and discrimination. Recently, food and agriculture company Bolthouse Farms took a stand, announcing changes to its nondisclosure agreement policy that allow past and present employees to report potential wrongdoing they may have experienced at the company.
During last week’s SFA In the Know webinar, “How to Stop NDAs From Harming Employees,” Michele Simon, a food policy expert and champion of Bolthouse’s new policy, moderated a panel that included Sarvenaz Bakhtiar, executive director of Lift Our Voices, a nonprofit seeking to make the American workplace safer, and Matthew Ayers, SVP and general counsel of Bolthouse Farms. Simon called for a close inspection of the specialty food industry, which often touts positive values but can fail its employees.
The panel spoke about how NDAs and their “sister agreement,” the non-disparagement clause, can be misused by employers, often unintentionally, to silence victims of workplace harassment and abuse. These often prohibit employees from making negative statements about the employer even in cases where they are experiencing inappropriate workplace behavior.
“If you can’t say anything negative [in a] non-disparagement clause, [then it] functions like an NDA,” Simon said.
Preventing employees from speaking about workplace issues can have a detrimental effect, said Simon.
“Being abused at work can be very traumatizing," she said. "Not being able to speak about the details of what happened to you only prolongs the trauma."
Bakhtiar mentioned that forced arbitration functions similarly to NDAs and non-disparagement clauses. She explained that, in forced arbitration, a case against a company cannot be brought to a jury of your peers. Instead, the jury is selected by the employer. There is also no appeals process if an individual feels a case did not receive the proper attention.
Bakhtiar shared that in the U.S., 60 million people are bound by arbitration clauses, and that number is expected to increase to 82 million.
An NDA is intended to legally protect the company by preventing employees from divulging trade secrets or other information that could be useful to competitors; however, the language of these contracts tends to be vague and outdated, giving businesses the power to apply it to many scenarios around the workplace.
“We understand that companies need to protect their trade secrets. While NDAs do help companies retain their proprietary information, these policies have become too broad now where companies are covering up much more than their business information,” Bakhtiar said. “They’re covering up abuse and harmful behavior that is happening in the workplace. That’s why we need to talk about it, create awareness, change laws, change policy, get companies involved because sometimes they don’t understand the impact or its effects on workers.”
One company affected by recent state legislative changes was Bolthouse Farms. The changes to Washington state laws narrowed the scope of what NDAs can cover, which allowed employees to freely report workplace abuses. Bolthouse's Ayers explained that this was an “aha” moment that made him realize what these laws can do. As such, he worked to fix the agreement Bolthouse workers across multiple states, rather than the small percentage of employees that are based in the Washington state.
In sharing the difficulties he had in implementing the changes, Ayers said: “Corporate inertia is a real thing. There may not be bad intent, but staying silent or passively supportive of a trend or event is not enough… it’s important to get rid of the problematic clauses and communicate to the employee base that there is a cultural shift, or that the culture was there but the intent wasn’t clear.”
To learn more about how NDAs, non-disparagement clauses, and forced arbitration can harm employees watch the webinar now in the SFA Learning Center.
Related: How to Stop NDAs From Harming Employees: Q&A With Simon; Why Bolthouse Farms’ New NDA Policy Matters: Q&A with Michele Simon