Google It: Employees’ Freedom of Speech or Potential Breach of Contract?


 

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Fortune Magazine lists Google as the “Best Company to Work For” in 2017, but it seems that one Google employee disagrees.  Former Google engineer James Damore was recently fired from the tech company after internally publishing a 10-page memo criticizing the company’s diversity policy. 

Google tends to embrace the free and innovative thinking of its employees, but this memo is surely one idea that the company wishes the engineer kept to himself.  Supporters of Damore argue that he was speaking out about the working conditions of all Google employees, while others say that a lawsuit would be frivolous because the engineer was merely airing out personal grievances.

Does Damore Even Have a Case?

Google is located in California, an at-will state, and it can fire an employee for any reason, unless that reason violates the state’s public policy or a specific law. 

Damore says that the memo was his way of complaining about illegal working conditions, even inviting co-workers to make comments in the document, but Google says that the engineer violated its code of conduct.  Now that Damore has filed an unfair labor practice charge against Google with the National Labor Relations Board, many have been discussing whether Damore could use to win this provocative case.

The First Amendment doesn’t enter the equation because its free-speech protections only apply to actions taken by the government and other “state actors,” and Google is a private entity.

Damore could have protections under whistle-blower laws, but he’d have to show that Google engaged in some sort of illegal or unethical activity.

Most likely, Damore will be arguing that his memo was protected under federal labor law as a “protected concerted activity,” because he was criticizing the company’s policies and inviting others to join in the conversation.

Google’s Argument

Google says that it fired Damore because he was “advancing harmful gender stereotypes.”  If the company can show that the code of conduct constituted some sort of employment contract, it could argue that Damore breached his contract.  Google may not even have to show that there was a breach because the code of conduct clearly states that employees found to be in violation of the code will be subject to discipline or termination.

Who wins?

Google seems to be stuck in a lose-lose situation, with many of its employees arguing that they are marginalized in some way. It has the right to use discretion when it comes to the messages its employees make public, but employees may believe they should have the right to freely voice their opinions without the fear of losing their job.

Damore’s case has many people, especially lawyers, going back and forth trying to determine what claims he could use and their likelihood of success.  While there are several legal questions, there are also many social aspects at play.

While citizens have the benefit of free speech protections from government action, this doesn’t apply to private employers.  I’m sure that the rest of the world, especially the Google employees siding with their former co-worker, will be tuned in to see what happens next.

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