What are you legally allowed to say at work? A group of fired Googlers could change the rules.

Filed in Blog by on June 12, 2021 0 Comments

The NLRB is expanding its complaint against Google for allegedly retaliating against employee activists in what could turn out to be a precedent-setting decision.

The National Labor Relations Board (NLRB), the US’s top labor rights regulator, has today added three more sacked Google employees to its lawsuit against the company. Former employees claim the corporation retaliated against them after they protested the company’s collaboration with US Customs and Border Protection (CBP).

Now that these employees have been added to the complaint, which will be heard before an administrative court in August, the outcome of the case could lead to a shift in what employees can discuss at work without fear of retaliation from their boss.

In December 2020, the NLRB filed a complaint against Google, alleging that the corporation was “interfering with, restricting, and coercing employees” who were exercising their legal rights to discuss workplace matters with their coworkers, including terminating two employees.

The NLRB’s San Francisco regional office asserted in an additional complaint filed this Wednesday that Google was similarly unlawful for terminating three other employees engaging in workplace organizing around the same time.

After protesting the company’s choice to offer cloud computing software to CBP, Google dismissed the three former workers who were added to the complaint — Paul Duke, Rebecca Rivers, and Sophie Waldman — in November 2019. Former employees expressed worry about the immigration agency’s role in deporting and detaining immigrants, citing human rights issues.

Google claims it fired the five employees included in the newly filed case for breaking company data security regulations, which they reject.

“We firmly support our employees’ workplace rights, but we also have a significant interest in preserving and enforcing our data security regulations, which were knowingly and frequently breached in this case….” We’re very confident in our decision and legal position as the hearing on these subjects progresses,” a Google spokeswoman said in a statement.

The new decisions potentially broaden US employees’ legal rights to protest their employer’s work’s societal impact, in addition to the more frequent labor issues of salaries and hours. This is part of a rising movement among low-level tech workers who want a say in how their labor is used. Workers at Facebook, for example, protested the company’s refusal to remove Trump’s inflammatory social media posts. Thousands of Amazon employees signed a petition pushing the corporation to cut carbon emissions.

Meanwhile, digital firms like Coinbase and Basecamp have tried to stifle internal debate by outright prohibiting political talk at work. However, as the Google NLRB case demonstrates, when politics and a company’s business are inextricably linked — as they frequently are when internet companies’ services are utilized globally by billions of people, including national governments and world leaders — those lines can blur.

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Employees do not have a constitutional right to free expression at work in general. Companies cannot, however, punish workers for debating salaries or working conditions in what is known as “protected coordinated conduct” under US labor law. However, the kind of actions that are typically protected are those that directly relate to the terms of workers’ employment, such as requesting better shifts or refusing to work in an unsafe environment.

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The three Google employees who were added to the lawsuit, all software engineers, were not requesting better compensation or longer lunch breaks in this case. Instead, they were demonstrating against unethical work.

Duke, Rivers, and Waldman began researching and raising internal concerns about Google delivering cloud computing tools to CBP in the summer of 2019. They created a petition requesting that Google promise not to work with CBP or other immigration authorities like US Immigration and Customs Enforcement (ICE), claiming that it is “unconscionable” for Google or any other tech business to sponsor organizations that “cage and torture defenseless individuals.” The petition was finally signed by over 1,500 Google employees.

Paul Duke, one of the sacked workers named in the suit, told Recode that he began organizing with his coworkers because he didn’t want his job to be used to “exploit, deport, or disrupt” immigrant communities that were “under siege.” CBP, the agency to which Google was giving software, was in charge of enforcing controversial immigration policies such as separating families and detaining youngsters at the US-Mexico border.

“Engineering is the art of making things possible and easy. “There is an unspoken mindset that says, ‘You have to perform the task,’” Duke explained. “However, I wanted to make sure that everyone was in the attitude to look at their work from a higher perspective and ask themselves, ‘What am I being asked to do?’ Who will benefit from this? ‘How is it going to be used?’

In 2017, Google co-founder and former CEO Sergey Brin publicly protested Trump’s immigration ban at San Francisco’s airport, while Alphabet CEO Sundar Pichai has said he “stands with immigrants” in response to Trump’s stringent immigration policy. As a result, some Google employees were taken aback when they learned about the company’s collaboration with CBP, believing it contradicted the company’s declared ideals.

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Employees who spearheaded the petition against Google’s collaboration with CBP also stated that they were mobilizing on behalf of the numerous immigrants who work for the company and are directly affected by Trump’s immigration policies.

Under President Trump’s leadership, the NLRB’s former top counsel dismissed Duke, Rivers, and Waldman’s claims, claiming they fell outside the scope of protected labor organizing. According to Bloomberg, the Biden administration’s new acting general counsel, Peter Ohr, reversed that decision in May when he asked the NLRB’s regional office to reopen the fired Google workers’ claims.

The reopening of these previously rejected cases by Ohr illustrates the Biden administration’s shift toward a more worker-friendly stance at the agency. Employees’ “political and social justice advocacy,” as Ohr recently asserted in a public memo, can be protected under the law in some situations, even if it isn’t “explicitly tied” to workplace concerns if the advocacy has a “direct linkage to employees’ “interests as employees.”

According to Wilma Liebman, a former NLRB chair under the Obama administration, the Google workers’ complaints are “unique” because they might broaden the definition of what is considered legally authorized worker organizing under what is known as “mutual help and protection” of other employees.

“I have no doubt that this case will stretch the boundaries of what existing precedent will consider,” Liebman said. However, while workers argue that they should have a role in company concerns, businesses such as Google can argue that they have ultimate control over critical business choices, according to Liebman.“They [corporate executives] will say, ‘We decide what kind of business we want to do.’ You are free to protest your working conditions, but not our business.’”

After the initial administrative hearing in August, Liebman predicted that the case would take several years to work its way through the legal system, which might include an appeal to the federal NLRB board and additional challenges in federal courts. Google has disputed that employees were fired as a result of writing the protest letter against CBP, instead claiming that individuals were fired for violating data standards, including exposing confidential materials to the press.

In part, a Google representative said in a statement in response to the allegation, “Our thorough investigation discovered the individuals were engaging in systematic searches for other workers’ documents and work, including leaking confidential business and client information.”The sacked employees claim that the information they discovered was not confidential and that it was available to any of Google’s more than 100,000 employees. They also claim that they only shared the information within the firm.

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The NLRB ruled that the records in question regarding Google’s interaction with CBP were “public” and “employee accessible” in its recently updated complaint.“I didn’t disclose any documents,” says the narrator. Rebecca Rivers, one of the sacked staffers named in the lawsuit, told Recode, “I didn’t do anything unlawful.”

“We were correct in our actions. This case, hopefully, will clear my name.”Google illegally fired two additional workers, Laurence Berland and Kathryn Spiers, at the same time as Duke, Rivers, and Waldman, according to Trump-appointed NLRB general counsel Peter Robb.

According to the complaint, Google improperly fired, interrogated, and surveilled the two workers in order to “discourage employees from engaging in” protected workplace action. The NLRB is now combining those complaints with the other three, resulting in a more comprehensive case against Google. This isn’t the first time Google has been chastised by the NLRB over labor-related issues.

The corporation promised in September 2019 to publicly remind its employees of their legal rights to discuss and participate in workplace organization. It was part of a settlement with the US National Labor Relations Board on allegations that the corporation was stifling protected expression among its employees. It was not revealed whether the complainants were compensated financially.

Google has been cracking down on its once-famous open work culture in recent years. This followed a wave of employee protests over problems ranging from sexual harassment to the company’s earlier work on artificial intelligence that could be utilized in lethal drone technology. The corporation implemented policies prohibiting employees from discussing politics on internal listservs and established a “need-to-know” policy for sensitive documents.

Google has previously stated that it has implemented stricter controls around workplace communications in order to reduce employee distraction and interpersonal friction. However, Google’s tightening of internal communications has made it more difficult for employees to speak out as freely as they once did about contentious business projects.

Some of the Google employees included in the lawsuit have stated that they want their case to send a message to giant tech businesses that there are limitations to how far they can suppress worker activity. They think it would encourage more people to speak up about such wrongdoings.

“I hope that more people in the tech business will blow the whistle in the future,” Rivers remarked.

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