Much of the employment law commentary about Google’s termination of engineer James Damore for his so-called “anti-diversity screed” (notwithstanding the sensational headlines, it was arguably a relatively sober memorandum questioning the effectiveness of certain types of diversity efforts specific to Google) has been misdirected, focusing on the First Amendment rights of free speech and at-will employment. But Mr. Damore filed an unfair labor practice charge with the National Labor Relations Board, alleging that he was terminated for engaging in “protected concerted activity” under Section 7 of the NLRA and in retaliation for exercising his rights. He may have a case. Under Section 7, employees have the right to engage in speech or make complaints about how an employer is doing things that could have an effect on more than just the one employee complaining or speaking. As we have previously reported, the NLRB in recent years has found that individual complaints about discrimination in the workplace are protected concerted activity. Thus, it would seem that, consistent with those decisions, employee speech about an employer’s handling of diversity in the workplace could also be protected concerted activity. Google has asserted or implied that Mr. Damore violated its corporate code of conduct and that his memorandum was disruptive. Similar defenses have generally been rejected by the Board in recent years on the theory that protected concerted activity is often inherently disruptive. So, the NLRB may take Mr. Damore’s charge quite seriously, even if NLRB Regional Officials may consider his memorandum “politically incorrect.”
Employers should watch this situation closely and learn from it. The current NLRB General Counsel has indicated in a memorandum that he views political activity and speech as inherently protected concerted activity. Private sector employers should also be aware that certain states and localities — including California, Colorado, the District of Columbia, New York, and North Dakota — have laws that may protect, through various means, political speech or affiliation, political activities, and lawful activities outside of work. With the publicity being generated by the Google situation and employment terminations in the national news flowing from the recent demonstrations in Charlottesville, Virginia, and elsewhere, this type of claim may become more common. (However, unlike Mr. Damore, who was writing about his employer’s diversity initiatives, political protesters in all likelihood would not have Section 7 claims against their employers because their activity does not relate to terms and conditions of their employment.)
Public sector employers should also be aware of First Amendment and other legal protections and restrictions applicable to their employees.