Bolthouse Farms Adopts Less Restrictive NDA Policy To Protect Employees
All Food Companies Should Follow Their Lead Given Shifting Landscape
Bolthouse Farms,* a business in the food and agricultural industry that grows and sells carrots, and makes dressings and beverages, announced today that it’s implementing a new NDA policy to protect its employees.
Non-disclosure agreements or NDAs have long been misused by corporations, non-profits, and other institutions to silence employees (especially women) from speaking out about sexual harassment, discrimination, and other abuses. Additional silencing mechanisms include non-disparagement (not speaking “negatively”) and confidentiality clauses.
Over the past few years, in the wake of the #MeToo era, numerous U.S. states have been enacting laws requiring employers to lessen restrictions on an employee’s ability to speak out about abuses at work. Of the several state laws that have been enacted in recent years, Washington State’s law, which went into effect in June of this year, is the strongest in the nation.
Most recently, Congress passed and President Biden signed the federal “Speak Out Act”, which bans NDAs in employment contracts (but not in post-dispute legal settlements) related to sexual assault and harassment only.
Bolthouse Farms now becomes the first food or agriculture company to take a public stand on this important issue. The company announced today that it is adopting a new NDA policy modeled on the Washington State law.
Bolthouse Farms is somewhat unique among food companies for employing several types of employees: agricultural, manufacturing, warehousing and logistics, sales, and administrative office staff. Earlier this year, the company acquired the juice brand, Evolution Fresh, from Starbucks.
While Bolthouse Farms has seasonal operations in Washington State, most of its operations are in California. From a compliance standpoint they already are required to follow Washington law for its Washington employees, and California law for its California employees. But instead of having a piecemeal state by state policy, the company decided to apply the strongest policy across the board.
Iveth Adriana Plascencia, the company’s Labor & Employment Counsel, explained to me: “It was important that we ensured uniform and maximum protection for all our 3,000 employees, be it an agricultural employee in California or an operations manager in Washington.”
Plascencia further explained why Bolthouse Farms did this: “Because we feel it is the right thing to do. While California law has also restricted the use of NDAs, we decided to adopt Washington State’s stronger policy, to ensure uniform and maximum protection for all our employees, regardless of where they are based.”
For the Bolthouse Farms own attorneys, this was not an intuitive decision; in fact, Plascencia had some reservations about the changes based on her years of experience and training as a lawyer working inside companies. Matthew Ayres, Bolthouse Farms’ Senior Vice President & General Counsel, challenged Plascencia by asking, “Why not do this? Sunlight is the best disinfectant. We will manage the consequences because our employees will be better served by this change.”
This move is a very big deal, especially for a California-based company. That is because the Washington State law is broader in scope and draws a clear line versus the California law, which allows for more interpretation and potential wriggle room.
In addition, the Washington State law treats non-disparagement clauses (not speaking negatively) the same as non-disclosure clauses, so non-disparagement clauses are not allowed either. Bolthouse Farms removed its previous section on non-disparagement entirely, to be in line with the Washington State policy’s intent.
Rachel Serrano, the company’s Senior Vice President of People, Culture & Capabilities, got to the heart of the issue, saying: “If there are problems our employees are facing, we want to know about it and address the issue. We don’t want to silence our people, whether they work in the fields, in the plant, or in our offices.”
The company still requires NDAs to protect trade secrets, and other intellectual property. This is how NDAs were originally meant to be applied. The change specifically relates to any illegal acts or other wrongdoing by the company.
Serrano added: “We hope this new policy will make employees feel safer in speaking out. We want to address any problems to make sure everyone who works for us feels safe, both physically and mentally. We also believe that it is a good learning opportunity, updating our policy gives us an opportunity to communicate and teach employees about their rights and the resources that they have as employees.”
The leadership that Bolthouse Farms is showing on this important issue should inspire other food companies and advocacy organizations in the good food movement to protect their workers as well.
I have previously written here about labor abuses at large natural food companies such as Amy’s Kitchen as well as questionable layoffs at the plant-based food company Beyond MeatBYND 0.0%. Employees at food companies like these are often afraid to speak out, either for fear of retaliation or because they signed NDAs. It should not be this way; the only way to stop abuses is to bring them out into the open.
Nothing is stopping any food company or non-profit organization from lifting the veil of silence right now. Specifically, for:
Current agreements: End the enforcement of all silencing mechanisms, which includes NDAs, non-disparagement clauses, and confidentiality clauses, across the board in all previously signed employee contracts, dispute settlements, and severance agreements, regardless of the nature of the dispute or settlement and regardless of whether there was a monetary settlement or not.
Future agreements: Take all silencing mechanisms off the table for any future employment contracts, dispute settlements, and severance agreements.
What is stopping your company or non-profit from doing this right now?
*Disclosure: I am a consultant to Bolthouse Farms..