Can a confidentiality agreement go too far? A lawsuit brought under a California state statute permitting employees to sue on behalf of co-workers alleges that Google‘s employee confidentiality agreement violates California labor law by requiring employees to forgo communication with third parties about workplace wrongdoing and other topics. Among the more interesting assertions in the complaint is that Google bars employees from writing novels set in Silicon Valley tech firms.
The linked article notes that “[t]he core of the complaint is that Google’s confidentiality policies prevent employees from exercising speech rights which are protected, both constitutionally and in federal and state law.” Journalistic accounts often note this fact as if it some kind of smoking gun—telltale evidence of a nefarious purpose or of abuse of the persons who are parties to the agreement. It’s worth remembering, however, that all contractual agreements involve surrendering legally-protected rights. When I agree to buy your laptop, I surrender my right to the money representing the purchase price and you surrender your right to the laptop. Thus, contracting simply is a process whereby one relinquishes some rights in order to acquire other rights. Unless we’re to hold the implausible position that all contracting is inherently wrongful, the interesting question isn’t whether an agreement involves the surrender of rights, but (i) whether there exists a class of rights that are or ought to be inalienable, and if so (ii) whether one of those inalienable rights is implicated in the agreement.
This piece could be used in tandem with others BEH has posted on topics such as gag clauses to pursue a classroom discussion about the use and abuse of confidentiality agreements. >>>
LINK: Google sued over policies ‘barring employees from writing novels’ (by Alex Hern for The Guardian)
Google is being sued over its internal confidentiality policies which bar employees from putting in writing concerns over “illegal” activity, posting opinions about the company, and even writing novels “about someone working at a tech company in Silicon Valley” without first giving their employer sign-off on the final draft.
The core of the complaint is that Google’s confidentiality policies prevent employees from exercising speech rights which are protected, both constitutionally and in federal and state law.
In a statement given to the Guardian, Google described the suit as “baseless”.
The suit says that Google’s confidentiality policies go so far that they also “prohibit employees from writing creative fiction. Among other things, Google’s Employee Communication Policy prohibits employees from writing ‘a novel about someone working at a tech company in Silicon Valley’ unless Google gives prior approval to both the book idea and the final draft.”
What do you think?