August 9, 2017


James Damore's Legal Case Against Google Isn't So Clear (CALE GUTHRIE WEISSMAN, 8/09/17, Fast Company)

"I think it's interesting that he filed a claim with the NLRB," says Miriam Cherry, a law professor at Saint Louis University who specializes in employment law. "That's maybe not the typical route that most people would take." This claim invokes a certain section-8(a)1-which prohibits employers from interfering with workers who are organizing to advocate for their own labor rights, or, as Cherry (and the law) describes it, "protected concerted activity." Often, NLRB claims involve unions, and Google-along with nearly every other tech company-is not unionized.

The idea is that if someone is making an appeal to workers on behalf of workers, the company cannot retaliate and fire that person. Though workers represented by unions are given more protections, section 8(a)1 protects everyone. Cherry offers herself as an example, explaining that she's a professor who's not in a union, but she still has the right to reach out to other employees about working conditions. That action, she says, would be protected. Because Damore wrote his memo in the style of a call to action to his coworkers to discuss Google, it could potentially be protected under section 8(a)1.

Cherry's colleague, professor Matt Bodie, who specializes in labor law and the NLRB, is also intrigued by her interpretation of Damore's situation. "From a workplace perspective, you can say [Damore] was trying to rally his fellow employees to oppose certain diversity initiates that Google has taken up," says Bodie. Those types of claims, Bodie adds, are generally brought by more than one person-for example, a group of people who collectively complain about their wages or conditions. This complaint is different: While he's reaching out to other employees, Bodie notes that the memo is "still personal." And this is a situation that the Labor Board hasn't really addressed yet.

Another route, which Damore has yet to take up in court, is his protection of free speech. This is a claim that will likely be even harder to prove. Law professor David Yamada of Suffolk University in the U.K. puts it plainly: "Private sector employees do not have general free speech rights."

If speech had no consequences it would hardly be worth protecting from government interference.

Posted by at August 9, 2017 6:46 PM