Labor and Employment Law

The risks associated with disciplining employees for critical comments about their employer’s policies were demonstrated again last week. The National Labor Relations Board (NLRB) concluded that Google violated federal labor law by issuing a final written warning to an employee for posting complaints about the company’s workplace diversity policies. The comments were posted on the company’s internal social networking platform known as Google Plus (“G+”). G+ allows employees to post messages relating to any topic, work and non-work alike. Employees post on issues such as work assignments, their personal life and current events, and employees are free to comment on those various threads and topics.

In this instance, through a number of comments and related threads on G+, the employee complained that certain employees were being harshly and unfairly criticized for expressing unpopular social, political, and workplace policy viewpoints. In particular, the employee believed that employees were being unfairly denounced and bullied when they criticized various Google workplace diversity and social justice initiatives. The employee questioned openly on G+ whether he and others would be subject to discipline for their comments, and even more pointedly, questioned management as to whether it was harassment for “Googlers to ‘dogpile’ on fellow employees who express unpopular opinions in good faith.” Ultimately, the employee received a final written warning that he had violated the Appropriate Conduct Policy’s prohibition on “disorderly or disruptive conduct” as well as the Code of Conduct, which required employees to do their “utmost to create a respectful workplace culture that is free of harassment, intimidation, bias and unlawful discrimination of any kind.”

The National Labor Relations Act (NLRA), which guarantees employees the right to engage in protected concerted activity for their mutual aid and protection, applies to both union and non-union workplaces, which is a surprise to many employees and employers alike. Google is non-union but the NLRB found that Google violated the NLRA by issuing the warning. The NLRB concluded that the while the employee’s posts were somewhat insensitive, they were not sufficiently offensive or disruptive as to be unprotected speech under the NLRA. Therefore, discipline for violating a work rule prohibiting uncivil and disruptive behavior, restrained the employee’s right to engage in protected concerted activities in violation of federal labor law.

While the factual details of this case are somewhat complex, the take away is clear, employers need to be cautious in both adopting workplace rules regarding prohibited conduct, as well as the application of those rules to specific circumstances, lest they violate federal labor law. This is true regardless of whether the workforce in unionized. In this instance, Google, with its large and non-union workforce, is now facing a nationwide remedy for maintaining and enforcing an unlawfully overbroad workplace rule.