After a Second Google Suit, Time to Re-Examine Policies Around Internal Forums?
The follow up to James Damore's suit against Google may prompt legal departments to take a close look at how they deal with speech on internal company message boards.
February 26, 2018 at 05:29 PM
5 minute read
The original version of this story was published on The Recorder
The saga of former Google engineer James Damore, who was fired in August 2017 for his memo which argued, in part, that women were less biologically suited for tech jobs than men, led to another lawsuit last week. But unlike Damore's recent class action complaint, claiming Google discriminated against conservative, white men, the new complaint alleges Google discriminated and retaliated against liberals.
While the two suits are ideologically at odds, they've also got something in common — both sprouted from heated political discussions on the company's internal messaging boards. Legal departments should take note and re-examine the structures currently in place for their companies' internal communication platforms, attorneys said.
“The more you offer forums like this the more [employees] are tempted to speak their minds about anything and not realize until it's too late that it may have some consequences,” said Robin Shea, a partner at Constangy, Brooks, Smith & Prophete. “I'm really not in favor of message boards at all, but if they are going to exist there ought to be some pretty clear cut rules about what types of communication are off limits.”
If a company does choose to have an internal forum, Shea says, it's helpful to warn employees that political posts have a high risk of upsetting coworkers and to have a policy set for if posts cross a line.
It's up to each company how to handle inflammatory postings, but Shea says its good to approach the issue case by case on a sliding scale, depending on the content. After an employee's first strongly-worded political post, it may be best to start with a warning, says Johanna Zelman, the managing partner of FordHarrison's Hartford office.
“If you haven't gotten any complaints, you may want to go the employee and say, 'We all respect your political views, but this [message board] isn't the appropriate place for such a strong statement to be made, I just ask you kindly to take it down,'” Zelman said. “If you've gotten complaints about it, then you need to do more of an investigation.”
Shea says it could be helpful to have involved parties sit down and talk things through. This, she says, could help each employee see the other's reasoning, learn why there was offense and learn from what could have been an innocent mistake. It also helps the employees' relationship grow rather than fracture further.
“If that fails, we go to the next level, which is formally asking the employee to stop sending the communications,” Shea said. “If they're really bad, if they're racist or sexually harassing, the employer would be within [their] right to say, 'we are going to take disciplinary action,' and treat it as they would under the company harassment policy. That should be reserved for very, very extreme behavior.”
This disciplinary process — and the conversations that arise first —could be complicated by which state an employee works in. California, where the Google suits were filed, has Labor Code sections 1101 and 1102 which state private employers can't fire or threaten employees for “following any particular course or line of political action or political activity.”
“California has certain protections for employees who are engaged in political activities to the extent that those activities don't have a negative impact on their job performance, on their ability to perform their job,” said Bailey Bifoss, an associate for Fisher & Phillips San Francisco office.
But attorneys noted that many other states' laws give private companies more control over what can be said in the workplace about politics, and that companies should remain aware of the individual state laws that apply.
On the federal level, there's also Section 7 of the National Labor Relations Act. It states employers can't threaten workers who engage in protected concerted activity or speech, which includes “circumstances where a single employee seeks to initiate, induce, or prepare for group action, as well as where an employee brings a group complaint to the attention of management.”
“It's a real balancing act, making sure we're not infringing on employees' rights to be engaged in political activities and discussion and concerted activities that could be protected in the NLRA and ensuring their conduct isn't bullying and [against] harassment policies California requires to be in place,” Bifoss said.
The attorneys said prompt investigations into inflammatory posts are important to make offended coworkers feel their concerns are heard, and that policies can help guide these investigations so that both sides feel they're treated fairly and in-line with stated company values.
“In these kinds of instances, policies are important because as soon as the messages become harassing to another employee, then as the employer you have to do something,” Zelman said. “It goes back to balancing. You have to balance the other employees' right to work in a place where they are comfortable with the right of the employee who is making a political statement.”
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