Want to stage a protest like Google workers? Read this first

Thousands of Google

GOOG, -0.93%

 employees walked off the job Thursday, upset over allegations the technology company’s gone easy on executives accused of on-the-job sexual misconduct — but workers ready to lace up their boots at other companies should think hard about copying the gesture.

They could be plastered all over the news one day, experts say, and sitting on their couch out of a job the next day.

That’s because private-sector workers can’t cloak themselves in free-speech rights, experts told MarketWatch. They might have other legal provisions and social forces behind them, but not the First Amendment.

‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’


First Amendment

The government can’t punish or limit freedom of speech, but a private company has a right to censure its own employees, based on its own company policy.

When it comes to government jobs, constitutional protections like free speech, equal protection and due process also apply, said Professor Michael Green, director of the workplace law program at Texas AM University School of Law. But even that’s not permission to speak freely. Courts balance a public employee’s rights against their employer’s rights to keep things running smoothly, he noted.

“There’s definitely not a right to protest in the private workplace,” said Paula Brantner, the executive director of Workplace Fairness, a non-profit organization supporting employee rights. Ken Novikoff, a lawyer representing companies, echoed that point. “A lot of people think the First Amendment applies to jobs with private employers and it doesn’t.”

But even if workers don’t have a constitutional leg to stand on, it’s not as if employers are itching to fire workers who do stage a protest. “Employers don’t want to fire people because it’s disruptive, and disruption affects profits,” said Novikoff, a partner at Rivkin Radler’s employment and labor practice.

“There’s a human aspect to it,” he continued, “Employers aren’t heartless. They don’t want to destroy someone’s livelihood unless they absolutely have to.”

Thursday’s “Walkout For Real Change” happened at Google offices from Dublin to Manhattan, fueled by a report by The New York Times that Android software creator Andy Rubin received a $90 million severance deal, despite the company’s conclusions that sexual misconduct accusations against him were credible. Rubin denies the accusations.

‘Employers aren’t heartless. They don’t want to destroy someone’s livelihood unless they absolutely have to.’


—Ken Novikoff, a partner at Rivkin Radler’s employment and labor practice.

The walkout comes during a #MeToo movement groundswell that has challenged the workplace status quo. And even before the potent hashtag sprang up last year, research showed millennial workers were looking for workplaces committed to social and environmental issues. Some 80% have said they would take a pay cut to work at a socially-conscious company.

In a statement, Google CEO Sundar Pichai said, “Earlier this week, we let Googlers know that we are aware of the activities planned for today and that employees will have the support they need if they wish to participate. Employees have raised constructive ideas for how we can improve our policies and our processes going forward. We are taking in all their feedback so we can turn these ideas into action.”

Google Chief Executive Sundar Pichai told a New York Times conference on Thursday: “Moments like this show we didn’t always get it right. We are listening to employees, which is why today is important.” (Google did not respond to a request for comment on whether it would discipline workers who walked off the job Thursday.)

Jeannette Cox, a professor at the Univeristy of Dayton’s law school, said Google workers walking off the job would likely be shielded by the National Labor Relations Act’s “concerted activity” provisions. In other words, Google workers were airing concerns about work conditions and practices that fit in the law’s protections.

Most employees can be fired for any reason

In all U.S. states except Montana, laws start with the presumption that employees are with companies on an “at will” basis, meaning that they can be fired for any reason, Green said.

There are caveats and exception, like bars against firing for race or gender, Green noted. But at-will arrangements cut both ways. It’s easy for workers to leave, and also be shown the door.

Private workers might not be able to justify the legality of their protests with the Bill of Rights, but they may have some protections under the National Labor Relations Act, the professor said. The law protects workers engaged in “concerted activity” to improve their own wages, working conditions and to unionize — or refrain from unionizing — the National Labor Relations Board said.

Case in point: In August 2017, Google fired an employee who wrote an internal memo critical of the company’s diversity efforts. The company said the memo violated the company’s code of conduct “by advancing harmful gender stereotypes in our workplace.” That case has proved both complicated and protracted for both the former employee and Google. Senior engineer James Damore subsequently sued Google for discrimination, but last month Damore decided to move his case into arbitration.

But employees who want to speak out against their companies have other things going for them. In the case of Google’s workers, all that media coverage matters. “It would be a PR disaster to start firing people,” Brantner said. The employees have “strength in numbers,” she said, and Google would have to fire everyone or pick and choose — and that “would raise the specter of how certain people being selected.”

Another advantage that protest-minded workers enjoy: The shifting expectations on what’s acceptable and not acceptable in the workplace, Brantner said. “We have fundamentally changed something about our expectations of the workplace,” she said.

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Andrew Keshner is a personal finance reporter based in New York.

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