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Comment by usaphp | Hacker News Reader

> It was difficult to find employees to go on the record. Like a lot of tech companies in Silicon Valley, workers signed non-disclosure agreements. NDAs usually are put in place so workers don't share any trade secrets or proprietary technology. So some workers were scared to talk to us because of this NDA they sign for working at Tesla.

Damn, so workers were afraid to speak up and spread the injury info because they were forced to sign an NDA and we’re worried about being sued. I think somebody needs to do something about this NDA situation, it’s getting out of control in SV

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> I think somebody needs to do something about this NDA situation, it’s getting out of control in SV

Not just in SV, it's all over the world. IMHO the right of protection for whistleblowers should be made a basic human right, in order to protect people worldwide who are afraid to speak out.

California law DOES protect whistleblowers. The law is extremely clear. Those laws even provide for damages due to retailiation.

Even in that situation, if you’re a paycheck-to-paycheck worker, how much boat-rocking can you endure? On some theoretical future date according to the law you can get back at your employer, great: in the meantime, maybe you got fired and now you can’t feed yourself?

We’ve seen plenty of companies that shrug off large fines and such. Whatever the rules, it has to reach the point of being seriously unprofitable to disobey (i.e. investors knocking to demand compliance).

Not to mention the further stigmatization that results from being a whistleblower- having your name in published sources associated with calling out an employer may impact how quickly you can find a new job. Future employers also like seeing $LARGE_CORP experience on a resume, where I've seen colleagues stay at a job they didn't like only for the prestige attached to this line item.

For a worker without this safety net there really isn't reason for them to violate an NDA and have to rely on whistleblower protections for future remidial damages if there isn't a guarantee that their current living situation would be able to be maintained. We saw last week how Apple fired leakers on the spot and have their name blacklisted towards future tech employers as such.

So what we need is name suppression for whistleblowers.

Not to mention the emotional toll. Having an entire HR department viciously attacking you when you’ve already been wrongned, while backing the party who wronged you, can be extremely scary and depleting.

> if you’re a paycheck-to-paycheck worker, how much boat-rocking can you endure?

As someone who grew up in a paycheck-to-paycheck household, you generally can't endure too much boat rocking. The ability to whistleblow takes a huge hit to your pocketbooks. If you don't have a pocketbook to begin with, it can be an extreme hardship.

So why are people still afraid to talk, then? It's obvious that either the law isn't as crystal clear, the law does not prevent companies from writing FUD into employment contracts or that people are not educated well enough about their rights. Or: that they have economic pressure (e.g. no 3 months of savings, like way too many people have!) to stay in their job and thus cannot afford to lose it by ratting out illegal or immoral practices.

Now, if every company in the world had the legal requirement to add a paragraph like "in the event that you witness illegal behavior at the company, the law explicitly allows you to report such behavior to media, unions, NGOs and public offices, and we are required to pay you for the duration of the investigation", that would be a different story. Everyone who reads his/her contract would know it.

Tesla has a history of blaming the owners of their cars for accidents with plenty of people defending Tesla's actions. I would imagine that a paycheck-to-paycheck worker has to know that the response to them will be similar with the added bonus of a signed NDA.

Sure. As long as you can prove that you experienced retaliation due to your whistleblowing and not because you were late to work 2 times this year, and can afford to litigate it.

Sure, except they only protect you from retaliation by your current employer. It does nothing to help you retain new employment once your reputation precludes you from opportunities at companies with draconian H.R. policies aimed at mitigating risk. Maybe existing or forthcoming case law can tell us more about how this plays out in reality.

Maybe we need a nonprofit job placement service for whistleblowers.

The founding fathers should have written something about this right into the constitution...

What are you alluding to?

Is there any way we can fine gross negligence by the executives responsible for these conditions and hand them to the whistleblower(s) most responsible for it coming to light?

NDA situation is getting out of control in the United States.

Almost every employee at every company signs an NDA when they start working. Oftentimes NDAs and other employment documents (Non-Compete clauses etc) are chock full unenforceable information. Most people agree because there's no ability to negotiate these documents, because they don't understand the clauses or because they don't know they're unenforceable.

The problem, as I see it, is that there's generally no consequences for an employer (or anyone else) to put unenforceable clauses in contracts due to the concept of severability.

It doesn't matter if parts of a contract are unenforceable, because the rest of it still is, so you may as well put as much bullshit in and hope nobody notices.

In New Zealand, this is a big problem with rental contracts. Landlords and real estate agents will put a bunch of clauses that they know are unenforceable in the contract and hope you don't notice. Most people will think that they are enforceable though because they're in the contract. Usually I know better, but rather than bring it up with the agents at signing time, I've found the easiest thing to do is to just ignore the clauses, and when they try to enforce it, I tell them to pound sand.

There need to be penalties for knowingly putting unenforceable terms in employment contracts. Too many companies subvert the law by putting unenforceable terms in their contracts and knowing that most employees will not realize that the terms are unenforceable and that most of the rest will be too afraid of being sued to break the contract even if they know that they would eventually win in court.

> I think somebody needs to do something about this NDA situation, it’s getting out of control in SV

Jimmy John's used to have their sandwich-making employees sign non-competes. They buckled on this since then, but this article details it with some other policy examples:

https://www.nytimes.com/2014/10/15/upshot/when-the-guy-makin...

Honestly, I'm not sure how many rank and file employees signed one. I worked there from 2012-2015 and, as far as I recall, wasn't required to sign an NDA. I do think they required managers (who were sent off to the 1-2 week managerial school in IL) to sign NDAs, though. Also GMs and other salaried positions.

Planet Money recently had a podcast about the growth and overreach of NDAs:

https://www.npr.org/sections/money/2018/04/06/600412430/epis...

NDAs are out of control everywhere. I understand they have a time and a place where they are useful, but most of the time they are being abused (ie. Stormy Daniels NDA, etc).

No, most of the time they are rather unremarkable and don't cause problems for anybody. You hear about the outliers, not the thousands and thousands of NDAs that are never disputed.

The last 3 NDAs I've signed were entirely reasonable; I'm not allowed to tell you who our customers were, but that's all it covers.

I thought generally NDAs are sort of unenforceable.

Is it possible there wasn’t anything to talk about? We are assuming that they had something to say but didn’t because of an NDA, but are we considering that they might not have anything to say?

If something illegal is happening, California law provides that NDAs are not enforceable when in conjunction with some criminal acts. Furthermore, NDAs can’t protect against a witness being subpoenaed or being required to testify in a court proceeding.

California whistleblower laws are also quite clear on the matter. It isn’t “getting out of control.”

It’s very possible that a reporter is using the existence of an NDA to imply something that can’t be confirmed or refuted. Remember, reporters are ambitious and have inherent bias as well. Just because someone doesn’t want to go on the record doesn’t mean they are acknowledging a problem. They might just genuinely not want to talk to reporters.

If there's nothing wrong, but the NDA scares people into staying silent instead of saying there's nothing wrong, that's still a problem.

The assertion in the excerpt is not that people didn't have anything to say. It's that the anonymous sources declined to put their name to their claims:

> It was difficult to find employees to go on the record.

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