Originally a comment by Screechy Monkey on A culture of openness.

First, it’s definitely not a First Amendment issue, for reasons I think have been well-discussed, i.e. the 1st Amendment applies only to “state action,” and Google is a private employer.

There is, however, a federal statute — the National Labor Relations Act — which is the labor law issue A Masked Avenger references @3. Although people generally think of the NLRA as having to do with unions, and specifically protecting speech related to union organization, it is in fact broader than that. Here is a good explanation:

Section 7 of the NLRA grants the following protected right to all private-sector, non-supervisory employees:

“…to engage in… concerted activities for the purpose of collective bargaining or other mutual aid and protection.”

Employers may not “interfere with, restrain or coerce employees in the exercise of” the employee’s section 7 protected rights. The breadth of section 7 is truly astounding, as “mutual aid and protection” is generally read to include any employee-interested motivation, such as concerns on compensation, hours, working conditions, supervisors, and workplace policies.

If you read the entire article at that link, you’ll see a discussion of some recent cases, including one from the Second Circuit Court of Appeals (which isn’t binding authority in the Ninth Circuit, where this Google lawsuit would presumably be filed) where an employee’s post on Facebook that Bob, his supervisor “is such a NASTY M***** F***** don’t know how to talk to people!!!!!! F*** his mother and his entire f****** family!!!! What a LOSER!!!!” was held to be protected speech under the NLRA.

This is a still-developing area of law — even though the Act has been around for a long time, I think lawyers have only recently been pushing the boundaries of what speech falls within its protection, and courts are still sorting it out. Also, the National Labor Relations Board plays a large role in interpreting the NLRB, and who knows how its position will change under the Trump Administration. I’m not very familiar with where the boundaries are.

But I’m pretty confident in saying that AMA’s suggestion @4 that California’s at-will employment presumption, and/or the employee signing off on Google’s policies, would bar this action, is incorrect. The NLRA is federal law, and assuming it covers Google (which it almost certainly does), it supersedes any state law that may apply — just as federal anti-discrimination law provides a remedy even in “at-will” states. Nor can you generally bargain away those statutory protections, except in some instances as part of a valid collective bargaining agreement. Again, if an employer got its employees to sign contracts that say “you agree that we may discriminate against you based on race, gender . . .” that would not be a valid waiver of or defense to a claim.

Last, the significance of anti-discrimination laws as a possible defense to Google strikes me as plausible but a little tricky. I don’t know offhand if there’s any precedent that says that speech that an employer fears may create a hostile work environment is exempt from NLRA protection, though it stands to reason that one should exist: an employer should not be stuck in a situation where it is liable under anti-discrimination laws if it doesn’t punish speech but liable under the NLRA if it does. I’d be interested in finding out more from labor law practitioners.

Especially as to how the analysis would shake out in the case of this memo. It was, at least in part, a discussion of what Google’s personnel policies should be, and that suggests that it may be eligible for NLRA protection. On the other hand, I think the former Google exec explained very well how this memo creates an obvious problem for an employer. If the law requires an employer to sit on its hands when an employee says “minority group X are all [insert negative stereotypes”] as long as he or she tacks on a “and therefore we shouldn’t hire or promote any,” then the law is an ass — and courts usually try pretty hard to avoid interpreting the law in such a way.

Overall, my gut take is that Google probably has the better side of this case, but I wouldn’t say that the employee’s suit is frivolous or “lost before it begins.”