An order issued on November 26 states that Google must turn over documents outlining its anti-union strategy in response to a National Labor Relations Board complaint against the online search giant, Los Angeles Times reports.
The board first filed its complaint in December 2020. It accuses Google of spying on employees, blocking employees from speaking with one another about work conditions and firing several employees in retaliation at attempts to unionise; all of which are illegal under federal labour law. In June 2021, the board expanded its complaint to include three more former workers who allege that the company fired them in retaliation for protesting its work with U.S. Customs and Border Protection.
The question at stake is significant for US employees in the tech sector and beyond: do workers have the right to protest at work.
The precedent is clear for some areas, explicitly protecting workers from retaliation for workplace organising over traditional labour issues such as wages, hours and working conditions. However, when the NLRB added the workers who say they were fired for organising against Google’s work with the border agency, the case’s scope reportedly grew to include the possibility that protesting the broader business decisions of an employer could be protected under labour law.
Google claims that it fired the workers in the complaint for violating its data security policies, not for their workplace activism, an allegation that the workers have denied. The company did not respond to a Los Angeles Times request to comment on the order.
The new ruling concerns Google’s work with IRI Consultants; a labour relations firm that Google retained in 2019 to create a campaign of “antiunion messaging and message amplification strategies and training” tailored to Google’s workforce The project was code-named Project Vivian.
This year the former Google employees subpoenaed company records pertaining to the campaign. Google responded by saying that it had found 1,507 relevant documents but refused to hand them over, arguing that they were protected by attorney-client privilege.
In September, the NLRB assigned Judge Paul Bogas to serve as “special master” in the case and review the individual documents to determine whether Google’s argument held up.
Judge Bogas’ interim report - filed on November 26 - found that only nine of the 80 documents reviewed so far contained any information covered by attorney-client privilege. Additionally, for many documents, only small sections could be redacted under that claim. He also wrote that Google “felt it necessary to attempt to conjure a privilege by detouring IRI material through outside legal counsel”; in other words, Google asked IRI to route its communications through a law firm in an attempt to keep it shielded under attorney-client privilege.
“This effort at creating the impression of legal advice is not only disingenuous but fails under established precedent holding that a party cannot cloak otherwise unprivileged material in attorney-client privilege simply by sharing it with legal counsel,” Judge Bogas wrote.
Google is ordered to produce the documents immediately, barring specific sections that were judged worthy of redacting because of real attorney-client privilege, and Judge Bogas will continue to review the remaining documents in the coming months.
Three of the former employees involved in the case - the three alleging retaliation for protesting Google’s work with U.S. Customs and Border Protection - also filed a lawsuit on November 29 accusing Google of violating California law by targeting gay and trans employees for retaliation, slandering one former employee and breach of contract.
Source: Los Angeles Times
(Link and quotes via original reporting)
An order issued on November 26 states that Google must turn over documents outlining its anti-union strategy in response to a National Labor Relations Board complaint against the online search giant, Los Angeles Times reports.
The board first filed its complaint in December 2020. It accuses Google of spying on employees, blocking employees from speaking with one another about work conditions and firing several employees in retaliation at attempts to unionise; all of which are illegal under federal labour law. In June 2021, the board expanded its complaint to include three more former workers who allege that the company fired them in retaliation for protesting its work with U.S. Customs and Border Protection.
The question at stake is significant for US employees in the tech sector and beyond: do workers have the right to protest at work.
The precedent is clear for some areas, explicitly protecting workers from retaliation for workplace organising over traditional labour issues such as wages, hours and working conditions. However, when the NLRB added the workers who say they were fired for organising against Google’s work with the border agency, the case’s scope reportedly grew to include the possibility that protesting the broader business decisions of an employer could be protected under labour law.
Google claims that it fired the workers in the complaint for violating its data security policies, not for their workplace activism, an allegation that the workers have denied. The company did not respond to a Los Angeles Times request to comment on the order.
The new ruling concerns Google’s work with IRI Consultants; a labour relations firm that Google retained in 2019 to create a campaign of “antiunion messaging and message amplification strategies and training” tailored to Google’s workforce The project was code-named Project Vivian.
This year the former Google employees subpoenaed company records pertaining to the campaign. Google responded by saying that it had found 1,507 relevant documents but refused to hand them over, arguing that they were protected by attorney-client privilege.
In September, the NLRB assigned Judge Paul Bogas to serve as “special master” in the case and review the individual documents to determine whether Google’s argument held up.
Judge Bogas’ interim report - filed on November 26 - found that only nine of the 80 documents reviewed so far contained any information covered by attorney-client privilege. Additionally, for many documents, only small sections could be redacted under that claim. He also wrote that Google “felt it necessary to attempt to conjure a privilege by detouring IRI material through outside legal counsel”; in other words, Google asked IRI to route its communications through a law firm in an attempt to keep it shielded under attorney-client privilege.
“This effort at creating the impression of legal advice is not only disingenuous but fails under established precedent holding that a party cannot cloak otherwise unprivileged material in attorney-client privilege simply by sharing it with legal counsel,” Judge Bogas wrote.
Google is ordered to produce the documents immediately, barring specific sections that were judged worthy of redacting because of real attorney-client privilege, and Judge Bogas will continue to review the remaining documents in the coming months.
Three of the former employees involved in the case - the three alleging retaliation for protesting Google’s work with U.S. Customs and Border Protection - also filed a lawsuit on November 29 accusing Google of violating California law by targeting gay and trans employees for retaliation, slandering one former employee and breach of contract.
Source: Los Angeles Times
(Link and quotes via original reporting)