Federal labor law prohibits retaliating against employees for collective action related to their working conditions, but the exact scope of that protection has been debated for decades. Biden’s appointees have signaled they interpret the scope of what that covers much more broadly than their Trump-era predecessors.
Latham said he isn’t aware of any case in the labor board’s eight decades of existence in which it has held “an employer’s choice of customer” to be an issue workers have a right to protest.
“What we have here is a protest that does not seek to improve employees’ terms and conditions of employment,” but rather “a purely political protest that sought to use Google’s government contracts, or potential government contracts, as leverage,” he said.
Google violated the law “to discourage employees from engaging in” legally-protected activism, according to a July complaint issued by labor board prosecutors.
Along with accessing information about and circulating a petition against Google’s work with U.S. Customs and Border Protection, the activities for which employees allegedly were punished included creating a Google form to help co-workers express concerns about working conditions; organizing a protest on company premises; and reviewing code for a pop-up message about labor law rights that would show up when workers visited certain sites online.
In her own opening statement on behalf of the labor board’s general counsel, agency attorney Tracy Clark said Google’s stated commitment to ethics was a key reason activist employees chose to work there in the first place. Workers will testify, she said, that their organizing “was based on Google’s commitment to ‘Don’t Be Evil,’ and their own desire to maintain a safe work environment for coworkers, and the communities affected by the Trump Administration’s border policies.”