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

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

2021-06-11 17:15:00

The National Labor Relations Board (NLRB), the leading labor rights enforcement agency in the US, has just expanded its complaint against Google to include three more Google employees fired. Those former employees say the company retaliated against them for protesting its work with U.S. Customs and Border Protection (CBP).

Now that these workers have been added to the complaint, which will go to court in August, the outcome of the case could lead to a shift in what employees can talk about at work without fear of repercussions from their employer.

the NLRB filed a complaint first to Google in December 2020, saying the company "interfered, restrained and coerced" employees exercising their legal rights to discuss workplace issues with their colleagues, including firing two employees. In an amended complaint filed this Wednesday, the NLRB's San Francisco regional office stated that Google was similarly wrong for firing three other employees involved in workplace organization around the same time.

Google fired the three former employees added to the complaint — Paul Duke, Rebecca Rivers and Sophie Waldman — in November 2019 after they protested the company's decision to supply cloud computing software to the Dutch DPA. The former employees said they were concerned about human rights over the role of the Immigration Service in deporting and detaining immigrants.

Google said it has fired the five employees named in the newly added complaint for violating its data security policies, a charge the employees deny.

“We strongly support the rights our employees have in the workplace, but we also have a strong interest in enforcing and enforcing our data security policies, which were intentionally and repeatedly violated in this case. … As the hearing on these matters progresses, we are very confident in our decision and legal position.” writes a Google spokesperson in a statement.

The added cases could expand the legal rights of American workers to protest the social impact of their company's work, in addition to the more general labor issues of wages and hours. This reflects a growing movement among ordinary tech workers pushing for a say in how their work is used. For example, on Facebook, employees protested the company's reluctance to remove Trump's incendiary social media posts. And at Amazon, thousands of employees signed a petition urging the company to: reduce CO2 emissions.

Meanwhile, technology companies such as Coinbase and base camp have tried to stifle internal debate by completely banning political discussions at work. But the Google NLRB case shows that when politics is inherently intertwined with a company's operations — something that often applies to tech companies when their services are used by billions of people worldwide, including national governments and world leaders — those lines can blur.

In general, employees do not have a constitutional right to free speech at work. But under US labor law, companies cannot punish employees for discussing wages or benefits in what is "protected coordinated activity." is called. However, the types of activities protected are usually related to workers' working conditions, such as asking for better services or refusing to work in an unsafe environment.

In this case, the three Google employees added to the complaint, all software engineers, did not ask for higher wages or longer lunch breaks. Instead, they protested work they saw as unethical.

In the summer of 2019, Duke, Rivers and Waldman began investigating and raising concerns internally about Google providing cloud computing software to CBP. They created a petition demanding that Google pledge not to cooperate with the CBP or other immigration authorities, such as the U.S. Immigration and Customs Service (ICE), stating that it is "unreasonable for Google, or any other technology company, to allow agencies would support those engaged in cages and torture vulnerable people." In the end, nearly 1,500 Google employees signed the petition.

One of the fired workers in the complaint, Paul Duke, told Recode he started organizing with his colleagues because he didn't want his job to "exploit, deport or disrupt" immigrant communities that were "under attack." . CBP, the agency to which Google supplied software, was responsible for enforcing controversial immigration policies to detain children and segregate families at the US-Mexico border.

“Engineering is about making things possible, making things easier. There's an unspoken mindset of 'you have to get the job done,'” Duke said. “But I wanted to make sure everyone was also in the mood to look at their work at a higher level and say: "What is being asked of me? Who is this going to benefit? What will it be used for?"

Google co-founder and former CEO Sergey Brin publicly protested Trump's immigration ban at San Francisco airport in 2017, and Alphabet CEO Sundar Pichai has also repeatedly expressed his disapproval of Trump's restrictive immigration policy, saying that he "stands with immigrants." So some Google employees were surprised to learn about the company's work with CBP and felt it betrayed the company's stated values. Employees leading the petition against Google's work with CBP also said they were organizing on behalf of the many immigrants who work at Google and were directly affected by Trump's immigration policies.

Under President Trump's leadership, the NLRB's former top attorney initially rejected Duke, Rivers and Waldman's claims because he felt it fell outside the scope of the protected workers' organization. In May, the Biden administration's new acting general counsel, Peter Ohr, backtracked on that decision when he asked the NLRB's regional office to reinvigorate the dismissed Google employee claims, as Bloomberg reported in May. Ohr's reopening of these previously dismissed cases reflects a more employee-friendly approach in the agency under the Biden administration. As Ohr recently stated in a public memo, he believes that in some cases workers' "political and social justice advocacy" may be legally protected – even if it is not "explicitly related" to workplace concerns – if that advocacy is "directly related to the interests of employees" as employees."

The cases of Google employees are "new" according to former NLRB chairman under the Obama administration, Wilma Liebman, because they could expand the interpretation of what is considered a legally protected employee organization to include "mutual aid and protection" from others. called employees.

"There is no doubt that I think this case will shift the contours of what the existing precedent would consider," Liebman said.

But while employees claim they should have a say in company affairs, Liebman said, companies like Google can also claim they have ultimate authority over important business decisions.

“They (corporate leadership) will say, 'We determine the business that we do. You can protest against your working conditions, but not against our company's business." Ultimately, Liebman said, it could take several years for the case to go through legal proceedings, which could involve an appeal to the NLRB federal board and further challenges in federal courts after the first administrative hearing in August.

Google has denied retaliating against employees for drafting its protest letter against CBP, but has instead said it has fired employees for violating its data policies, including leaking sensitive documents to the press.

"Our thorough investigation revealed that the individuals were involved in systematic searches for other employees' materials and work, including the distribution of confidential company and customer information," a Google spokesperson said in part in a statement in response to the complaint.

The fired employees have said the information they found was not confidential, but was publicly available to one of Google's more than 100,000 employees, and they only shared the information internally at the company. The NLRB found in its recently amended complaint that the documents in question regarding Google's relationship with the Dutch DPA were "public" and "accessible to employees".

“I have not leaked any documents. I have done nothing inappropriate," Rebecca Rivers, one of the fired employees named in the complaint, told Recode. "We were right in what we did. Hopefully this case will clear my name."

In 2019, Trump-appointed NLRB general counsel Peter Robb found that Google had illegally fired two other employees, Laurence Berland and Kathryn Spiers, who had been fired around the same time as Duke, Rivers and Waldman. The complaint alleged that Google had taken steps to "discourage employees from participating in" protected workplace activism by illegally firing, questioning and auditing the two employees. Now, the NLRB will join those complaints with the other three, creating a more extensive case against Google.

This isn't the first time Google has come under fire from the NLRB over workers' rights issues. In Sep 2019, the company agreed to publicly remind its employees of their legal rights to talk about and participate in workplace organization. It was part of a settlement with the US National Labor Relations Board over claims that the company was suppressing employees' protected speech. It was not disclosed whether the complainants received any monetary compensation.

In recent years, Google has cracked down on its once famous open work culture. This came after a wave of employee activism on issues ranging from sexual harassment to the past work on building AI that could be used in deadly drone technology. The company has issued rules discouraging employees from discussing politics on internal listservs, and created a "need-to-know" policy for sensitive documents.

Google has previously said it has put in place stricter rules around workplace communications to avoid distraction from employees and to prevent interpersonal conflict between employees. But the restriction on internal communications at Google has made it harder for employees to speak out about controversial company projects.

Some of the Google employees named in the complaint said they want their case to send a message to major tech companies that there are limits to how much they can counter workers' activism. They say they hope it inspires more people to talk about possible abuses.

"I hope there are more people whistling in the tech industry in the future," Rivers said.


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