Tag: Google James Damore

Business Insider says nah, James Damore isn’t the new free speech hero the world has been looking for.

James Damore, the Google employee fired Monday for publishing a 10-page anti-diversity manifesto, almost certainly has not had his First Amendment free-speech rights infringed. If he sues Google — which Reuters reports he is considering — he will lose, unless he can find a court willing to create a new free-speech right for American workers.

Tuesday morning, the alt-right corners of the internet are rallying to Damore’s cause. He is a shining example of how the left bans certain conservative ideas and punishes people for trying to discuss them openly, they say. It is outrageous that someone can lose his job simply for disagreeing with the politics of his liberal employer, they wail.

But what about for circulating his own opinion that women aren’t good enough to work at Google? What about the effects that will have on Google as a workplace, Google’s potential for being sued by the government, Google’s reputation? Is all that a good enough reason for someone to lose his job?

“I have a legal right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behavior, which is what my document does,” Damore told The New York Times.

The problem is that US labor law is well settled in this area: In the vast majority of US states, employees have almost no rights to free speech at work.

The First Amendment constrains the government, BI goes on, not employers.

Another catch for Damore is the fact that he did his speechifying in and at Google, using Google resources. That’s not the same as expressing an opinion elsewhere in the world using his own resources.

Damore’s problem is that he used an internal Google mailing list owned by Google to disseminate his manifesto. People do not have the right to use their employer’s resources to pay for their freedom of speech.

As illustrated by Volokh years ago in The Washington Post, the California test is whether Damore’s speech disrupted the legit business of his employer. As CEO Sundar Pichai’s memo makes clear, his manifesto became so internally disruptive that Pichai had to cancel part of his vacation to deal with the fallout. Pichai’s memo describes a “very difficult few days” at the company that forced him to fly back to California, from a trip to Africa and Europe, to fix the Damore problem. That would indicate that Damore’s speech was so disruptive it was handicapping Google’s work of building software. Indeed, the reports coming out of Google suggest that the internal reaction was so extreme that plenty of work hours were lost as employees clashed over the manifesto.

Gee, dudebros can’t even have any fun any more.

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.”

On the one hand, shock-horror, Google has fired that nice James Damore simply for expressing his opinion, no one should ever be fired just for expressing an opinion.

On the other hand, just a couple of weeks ago the Labor Department was saying Google’s confidentiality policy was making it difficult to gather information on their demographics.

So is Google political correctness run amok or is it self-protective capitalism as usual?

The US Department of Labor has raised concerns that Google’s strict confidentiality agreements have discouraged employees from speaking to the government about discrimination as part of a high-profile wage inequality investigation.

Following a judge’s ruling that Google must hand over salary records and employee contact information to federal regulators investigating possible systemic pay disparities, a labor department official said the agency was worried that the technology corporation’s restrictive employee communication policies could impede the next phase of the inquiry.

“We have had employees during the course of the investigation express concerns about whether they are permitted by Google to talk to the government, because the company policy commits them to confidentiality,” Janet Herold, labor department regional solicitor, told the Guardian in an interview after the judge’s order.

“When even a single employee expresses that, that means many more people are too concerned to make the call or have the conversation. The chilling effect is quite extreme.”

Google said Nuh-UH, not true, not true not true not true.

But Herold’s comments and the DoL’s recent filings – along with interviews with former Google workers and a separate federal complaint against the company – paint a picture of a workplace where employees have allegedly been subject to overly broad and illegal confidentiality policies and threatening messages from managers that have intimidated them into staying silent about wrongdoing.

These kinds of confidentiality clauses are commonplace in Silicon Valley, ostensibly to protect trade secrets. But critics say the rules are sometimes so extreme they prevent employees from engaging in their legally protected rights to raise concerns about discrimination, sexual harassment and other labor violations.

“It is built into the culture that it’s shameful to leak,” said one former senior manager at Google, who requested anonymity for fear of repercussions. “It builds a sense of paranoia … There is just such a sense that leakers will be found and terminated.”

Ironies abound here. James Damore would seem to be an example of that except that he wouldn’t, because his memo didn’t discuss concerns about discrimination, sexual harassment and other labor violations, it discussed concerns about too much concern about discrimination and sexual harassment. It was itself discrimination and sexual harassment. (Yeah it was. I know it was dressed up as a dispassionate and “scholarly” treatise on How Women Are Different From Us, but that was indeed just dressing up. Under the frilly gown it was just a bog-standard MRA rant about stupid emo women.)

The concerns of Herold and other government attorneys stem from the labor department’s continuing audit of Google, which is a federal contractor and must comply with equal opportunity laws. In January, the labor department sued Google for compensation data it refused to disclose after the government’s preliminary inquiry found that the company pays women less than men across the board.

Google – which argued that the data requests were too expansive and violated employees’ privacy – has vehemently denied the discrimination allegations, saying its own analyses have found there is no gender pay gap.

A judge ruled last week that Google must provide the labor department with 2014 salary records and contact information for up to 8,000 employees for possible interviews. Herold said the department was concerned that the next phase of the investigation could face obstacles as a result of Google confidentiality rules.

“The entire enforcement mechanism of federal law is dependent on employees feeling free and able to talk,” she said. “In a case like Google, where our preliminary analysis reveals systemic and sweeping discrimination in pay against women for nearly all job titles … something is going on and we need to find out what that is. Employees are the eyes and ears on the ground.”

Wheels within wheels, eh?