Bolthouse Farms has adopted a non-disclosure agreement policy that sets an example for not only the rest of the food industry, but for businesses across industries, said Michele Simon, a consultant who worked with Bolthouse Farms on the policy.
Simon said many companies have historically used their NDA policies to prevent employees from speaking out against sexual harassment, discrimination, and other abuses in the workplace. Bolthouse Farms, by contrast, has implemented a policy based on Washington State law, which significantly narrows the scope of what NDAs can cover, so that employees are free to report workplace abuses, she said.
Simon, a public health attorney who also founded the Plant Based Foods Association, recently spoke with SFA News Daily about Bolthouse Farms' policy.
What is it about Bolthouse Farms' NDA policy that makes it so important?
Wherever a company is based, it is required to follow the laws of that jurisdiction. But Bolthouse is going further than that by essentially applying Washington state NDA policy to all of their employees. That's important because Washington state law is the strongest in the nation.
Bolthouse has most of its employees based in California, and It also has some operations in other states, but they've decided that all of their employees should benefit from the strongest law in the land in order to give their employees the ability to speak out about wrongdoing.
Can you explain the background that led to Bolthouse Farms' policy change?
In general, companies historically have had blanket NDA policies. Obviously, companies have a legitimate interest in protecting their intellectual property, their trade secrets, etc., but what's happened over time is that NDA policies have broadened to restrict employees from talking about anything that goes on at the company.
In the wake of the #MeToo era and other similar reports of discrimination, sexual harassment, and other employer wrongdoing, there has been a backlash to these overly broad NDAs. That has manifested in the form of various state laws that have been enacted over the last few years, and even at the federal level, that seek to restrict how employers can deploy the use of non-disclosure agreements and other silencing mechanisms.
Bolthouse is following this trend and saying that they also don't want to overly apply the use of NDAs. The company is understandably keeping the NDA for its original, legitimate purpose of protecting trade secrets and intellectual property, but recognizing that there's no need to restrict an employee's ability to speak out about workplace abuses such as sexual harassment, discrimination, and other forms of wrongdoing.
Basically, they're saying they agree with this societal shift that's happening, and they want to be a leader in the food industry and say, “We want our employees to feel safe in speaking out about potential wrongdoing at our company.”
Do you think Bolthouse Farms' actions might have some influence on other companies in the industry?
As someone who wants to see this kind of shift happen industry wide, it's very important to me to send a message to the rest of the food industry—and of course corporate America in general—but particularly the food industry, which has been the source of a lot of worker abuse. I think this problem of workplace abuse is one that we're not addressing in a systemic way, and I am hopeful that this bold step by Bolthouse Farms will help ignite a conversation.
I'm hoping that the Specialty Food Association can continue this conversation about how workers are being treated, and if there are employees who are being silenced, why is that? And how can we shine a light on what's going on in order to stop these practices and create a more open, honest dialogue about these problems?
Does the federal Speak Out Act that President Biden recently signed not go far enough?
It does not. It applies to employment agreements, which had been causing problems, particularly for women who were sexually harassed but were unable to speak out about it. The Speak Out Act makes that practice illegal, and it means that current employment contracts are unenforceable regarding any kind of sexual harassment or sexual abuse.
There are two ways, however, that the law does not go far enough. One is that it only applies to the practices of sexual harassment and sexual abuse and does not apply to discrimination or any other kind of employee wrongdoing. The second way is that it only applies to “pre-dispute” situations in the form of employment contracts, as opposed to the Washington state law, which says that employers cannot force NDAs on their employees at any time.
It's important that companies know that at minimum, they can no longer have broadly worded NDAs in employment agreements up front. To do the right thing, they should follow in the steps of Bolthouse Farms and model their policies after the Washington state law, which is still the strongest in the country.
Do you expect other states to follow Washington's example?
The good news is that other states already have enacted various laws to restict NDAs. California has a pretty good law on the books, and a handful of other states have active laws that in one way or another restrict an employer's ability to silence their employees.
I do expect other states to continue on this path, and I want to see that effort go further at the federal level as well. This is an ongoing issue, and it's one that's also being talked about in other countries, and we are seeing other corporate sectors changing their internal policies as well.
We are seeing activity from a number of different sectors at the same time, whether it's legislatively at the state and federal levels, companies changing their own practices, or shareholders taking it up. All of this is necessary to create the shift in culture that sends a message that silencing your workers is no longer acceptable in any way, shape, or form.
Every food company should heed that message and create a culture of transparency. Even with a change in policy, the most important thing is that employees truly feel that it's safe to come forward, without fear of retaliation. It requires a deeper look at your corporate culture, and it has to come from the top of the organization. There is a quote from the general counsel at Bolthouse Farms, Matthew Ayres, that I just love. He said, "Sunlight is the best disinfectant."
That is the attitude that every company CEO, general counsel, and on down needs to have. I would encourage companies to take a deeper look into what their corporate culture is. There are ways to get at that through surveys and talking to people, or by bringing in an external consultant so that people feel safe talking to them.
I think of it like a toxin. We talk about wanting to make healthier foods for people to live more sustainably, etc., but you've got to also look inward. We have to detoxify our workplaces to truly protect and support the people who are working for us.
Related: Bolthouse Farms Eases NDA Policy, Protects Workers; IFIC: Emerging Trends to Focus on Well-Being, Sustainability.