When former Google engineer James Damore internally published his open letter, now referred to as the "manifesto," it sparked controversy. The company ultimately fired him. But Damore has now brought a lawsuit and, as a former colleague of mine just pointed out, some twists of labor law every employer should understand means he could win.

Some who are supportive of diversity, when reflecting on the manifesto, thought that companies aren't making enough space for people to adjust to new realities even though the push for greater diversity needs to continue. There was the argument that by firing the engineer, Google leadership displayed strong emotional intelligence. I've seen people say that Google was trying to police personal thought. My take was that the way and style in which Damore published his opinions left Google no room but to fire him.

However, what seems right may not be something you can do legally. As Jim Edwards of Business Insider UK noted, U.S. labor law may protect what Damore said and the engineer has brought suit under the National Labor Relations Act.

The NLRA governs many aspects of the employer-employee relationship -- for example, who can be considered someone's employer in a franchise business. An important part is the right for labor to address working conditions. Specifically, under Section 7, you find the following:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].

Although you might read this as only having to do with unions, precedent and legal decision make clear that "other mutual aid or protection" extends beyond collective bargaining. Furthermore, in Section 8, it is considered an "unfair labor practice" for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7."

Edwards spoke with a California labor lawyer, Valerie Sharpe, who called Damore's chance for success in court "a little bit above decent." At issue is exactly what Damore said and how he said it. He raised questions about whether there is unfair treatment of white male employees (gender and race are protected classes) and was then fired. He apparently doesn't have to prove his point to make put his speech into a protected category. He didn't say he disapproved of diversity. He disagreed with the best way to achieve it. All he has to do is show that his claim was to advance his working conditions and those of others.

This may sound screwy to many, but it reminded me of a number of cases that have been litigated about employees fired for making comments on social media about their employers. The National Labor Relations Board has ruled multiple times that an employee cannot be fired for public social media posts so long as the speech is about protected activities -- like complaining about conditions at work or perceived discrimination and harassment. The medium in this case was a company mailing list provided by Google.

It's not as though Damore has an easy path to legal retribution, but it does potentially exist. The whole situation is a reminder to entrepreneurs that you can't always do as you wish, or even as you think prudent and ethically necessary. You always have to navigate laws in the country, and doing so can be trickier than you think, even if you're a company like Google with a stable of lawyers and an experienced HR department to keep you out of trouble.

Published on: Aug 11, 2017
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