Google is accused of violating labor law for asking employees to “refrain” from talking about antitrust cases

The Alphabet Workers Union has filed suit against Google with the National Labor Relations Board after Google management asked employees to “refrain” from talking about the ongoing Search antitrust lawsuit.

The union accuses Google of issuing “overly broad guidance” on discussing the matter with employees, according to a copy of the complaint filed in August and viewed by The edge. On August 5, just after U.S. District Court Judge Amit Mehta issued his decision ruling that Google had an illegal monopoly, global affairs president Kent Walker sent an email (also reviewed by The edge) instructing employees “to refrain from commenting on this matter, either internally or externally.” Walker sent a similar message at the start of the trial last fall: Business insider reported at the time.

That could be a problem for Google if the NLRB concludes that Walker’s directive could deter protected joint activities: actions by two or more employees together that are protected by labor law, such as discussing working conditions. “I can certainly imagine that there are ways in which the case would ultimately impact working conditions,” said Charlotte Garden, a professor at the University of Minnesota who specializes in labor law. The DOJ has since suggested that fixing Google’s anticompetitive harm could mean something as drastic as breaking up its Android and Chrome businesses — something that could plausibly result in significant changes for employees in those units.

Still, Garden says there are some discussions employees can have about the matter that may not be protected, such as thinking about how management should respond to the government. The NLRB will also weigh Google’s legitimate business interests — perhaps including controlling the conduct of its own process or only authorizing specific spokespersons to speak on its behalf — and how likely it is that the company’s statements management-protected conversations between employees will cool down.

“We respect the rights of Googlers to speak about their employment conditions,” Google spokesperson Peter Schottenfels said in a statement to The edge. “As standard practice, we simply ask that employees not speak on behalf of Google about pending litigation without prior approval.”

Although Walker’s email did not contain an outright ban on speaking about the antitrust case, the NLRB could still consider it a violation if it concludes it would likely chill employee speech, Garden says. The board will evaluate how employees interpreted and likely interpreted the email – as a general guideline that isn’t enforced, or as a line you shouldn’t cross or risk getting into trouble or missing out on future opportunities lying down, she says. To do that, Garden explains, the NLRB would look at employees’ own reactions and interpretations of the guidelines and how the company has responded when employees have gone against such guidelines in the past.

Stephen McMurtry, a senior software engineer at Google and communications chair of the Alphabet Workers Union, sees his employer’s past actions as a warning sign. “I believe the company has a history of silencing or retaliating against employees who speak out about their working conditions or complain to the company about things they believe are wrong or unethical. So even though the language is a kind of corporate ‘stand back’, I think we can all see what has happened in the past with some of our colleagues who have raised concerns about various issues.”

McMurtry pointed to the 2018 mass strike in the wake of the #MeToo movement. Two of the organizers claimed retaliation for their role in the demonstration (which Google denied) and ultimately left the company. Another former Google engineer told it The edge in 2019, she was fired for creating a browser pop-up informing employees of their labor protections. A Google spokesperson at the time did not confirm the employee’s firing, saying that they had fired someone who “abused privileged access to modify an internal security tool” but that it was not a matter of its contents. “It doesn’t seem that far-fetched that this could happen in this situation,” McMurtry said.

McMurtry doesn’t really know what his colleagues think about the outcome of the case and what solutions might impact their work because he says it’s not really talked about. He doesn’t even have much of an opinion on the solutions the DOJ has proposed so far, but says it would be easier to come to an informed opinion about the likely impact on workers if he could talk about it with his colleagues.

It could take some time for the case to be resolved, if the NLRB even decides to take the case. Garden says a regional office will first investigate the complaint to determine whether to move forward — although many cases have already been resolved before that happens. NLRB spokesperson Kayla Blado shared The edge that the Oakland office is investigating the complaint, which was filed on August 15. The NLRB says it typically takes seven to 14 weeks to determine the merits of a charge, which could bring a case before an administrative law judge if the government chooses to pursue it. Meanwhile, Google and the Justice Department will return to court in April to discuss what remedies the judge should impose to resolve Google’s anticompetitive effects.