The NLRB filed a complaint against Apple. The former engineer who cofounded #AppleToo explains why it's important.

• The NLRB filed a complaint against Apple, alleging labor law violations and retaliation.
• Cher Scarlett, a former Apple engineer, initiated charges after she said she faced retaliation.
• The NLRB seeks remedies, including reinstating Scarlett and revising Apple's employee policies.

The National Labor Relations Board filed an unfair labor practice complaint on November 1 that alleged Apple violated federal labor law and retaliated against employees who discussed pay and working conditions.

The case's charging party, Cher Scarlett, is a former software engineer on Apple's security team. She was a prominent organizer for the #AppleToo movement who helped launch an anonymous survey and a website for Apple employees to share stories about pay disparities and harassment.

Scarlett said she left Apple in November 2021 after facing retaliation after she set up the wage survey and intimidation for her organizing efforts. She added that employees were not part of a union and were not allowed to present the results of their findings to HR collectively. She was also told to take medical leave and offered a severance agreement.

"I'm not saying everybody has to go share their wages, but the fact is it's a personal decision about what you want to share. It's not a business decision," Scarlett told Business Insider.

Scarlett filed the first of her three charges against the company with the NLRB in September 2021.

The new complaint, which consolidates her three charges, is the first step in the board's litigation process after the board investigates and finds merit in unfair labor practice charges. If both parties do not settle, a hearing will occur in June in Oakland.

According to the consolidated complaint copy that BI reviewed, the NLRB found that Apple created a culture of surveillance by telling employees not to speak to the press or post online on social media about pay disparities. The board also said the company selectively enforced bans on creating Slack channels to discuss working conditions.

Section 7 of the National Labor Relations Act protects workers, even if they are not unionized, to engage in concerted activities "for the purpose of collective bargaining or other mutual aid or protection."

The NLRB found in the complaint that Apple maintained an overbroad confidentiality rule and "constructively" fired Scarlett by making continued employment contingent on her ceasing these Section 7 activities.

The complaint included remedies, such as requiring Apple to post an official board notice at its offices and electronically explain the rights granted by the National Labor Relations Act and having managers and employees receive NLRB training regarding their rights as laborers. If an order is issued, Apple must amend its rules to not interfere with employees' Section 7 rights to organize.

The NLRB's General Counsel also seeks an order reinstituting Scarlett in her former job position, compensating her for the financial losses incurred due to the unlawful termination, and providing a neutral job reference. Scarlett told BI that Apple and the NLRB discussed a potential settlement, and those talks have not yet succeeded.

The NLRB declined to comment. Apple did not respond to a request for comment.

A culture of silence

Scarlett's case is among other ongoing unfair labor practice complaints by former Apple employees.

The NLRB issued complaints last month for two other cases, alleging that Apple required employees nationwide to sign illegal confidentiality, non-disclosure, and non-compete agreements. The board also said that the company restricted employee usage of social media and Slack to advocate for better working conditions. These cases will be heard with an NLRB administrative law judge in Oakland next February.

Although Apple told the SEC its policy is to not use strict non-disclosure clauses following allegations of harassment or discrimination, Scarlett showed that was not true when she came forward to BI in 2021 and broke her NDA.

In 2021, Scarlett filed a whistleblower complaint with the SEC over what she described as "false statements or misleading statements" by Apple to the agency. Soon after, under pressure from activist investors, Apple agreed to "make improvements and clarifications" for using NDAs and said it would not enforce agreements like Scarlett's.

In California, where many Apple employees are based, the passage of laws such as the Silenced No More Act prohibits companies from preventing employees from speaking out about discrimination and harassment.

"Decades later, the same things that women were fighting in Silicon Valley about for recognition and pay parity and like not being sexually harassed and everything–they're still fighting for that today," Scarlett said.

Many Silicon Valley tech workers have said that companies force them to sign stringent non-disclosure agreements that create a culture of silence and prevent workers from discussing working conditions such as pay disparities. The culture of preventing workers from speaking about pay disparities especially impacts women.

The #AppleToo survey, which Scarlett said received almost 4,000 responses out of 147,000 employees, showed that women were paid 6% less than men in 2020.

Evan Starr, assistant professor of management at the University of Maryland, said companies don't want workers to discuss wages "because they don't want the workers necessarily unionized, and they don't want to necessarily have to respond to coordinated pay demands among workers."

The future of labor organizing in Silicon Valley

The NLRB has received an uptick in unfair labor practice filings from tech workers. Employees at Microsoft, Google, Amazon, and The New York Times have pushed for unionization efforts to address working conditions.

"When we talk about labor law, we're really talking about unions and hourly labor, like retail, front line, and service workers," Scarlett said. "Tying this to corporate workers, especially high ranging software engineers who worked there a long time, really shows you that labor issues are not just issues that hourly per person faces. It's beyond that. It's technology workers. It's everyone you know who is the laborer."

Scarlett and other employees created #AppleToo, modeled after the #MeToo movement, to encourage more workers to share stories about incidents of discrimination, inequity, sexism, and racism at Apple. Movements like #AppleToo reflect a greater push from tech workers, who expect more employer transparency.

"I do think tech is at a little bit of an interesting crossroads," said Matthew Bodie, an employment law professor at the University of Minnesota Law School. "People are looking ahead to their careers. They're not necessarily looking to spend their whole career in one place, particularly when you have employees who have more power than the org, like a software engineer who might be valuable to other companies. That person is going to want to have a say."

Scarlett said that it has been difficult to find employment after becoming a whistleblower, despite having more than 20 years of developer experience at places such as Webflow, USA Today, and Activision Blizzard. Last year, the NLRB filed a complaint against Mozilla for refusing to hire her. Scarlett said tech workers may worry about being blacklisted if they come forward as whistleblowers.

Despite these challenges, Scarlett hopes to move forward. She said she would not stop being a labor activist just to get a job.

Scarlett added that this work "gives the next people who are experiencing these issues the power to hold Apple and other companies in Silicon Valley accountable."

Read the original article on Business Insider