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What to Say – and What Not to Say – in the Workplace: Lessons From Recent Google Incident

A former employee at Google made headlines recently when he wrote a memo criticizing elements of the company’s pay equity and gender diversification policies. What started as an internally-circulated memo made its way into the public eye – and the press. The memo sparked a lot of conversation about what’s appropriate to openly critique about an employer and what’s not.

Bret McKitrick, Senior HR Consultant for Associated Benefits and Risk Consulting, breaks down the legal rights of employees, and where those rights end, when it comes to speaking out openly about one’s workplace or supervisors.

Google Employee Memo Goes Viral.

“Well the software engineer in question wrote a memo that was circulated amongst employees at Google, and then it became viral and leaked to the press at some point,” McKitrick said. “And that memo talked about pay equity issues (and) how Google has handled diversity in the workplace, mostly (in terms of) gender diversity.”

“The memo also contained a lot of stereotypes about women and this software engineer’s view about female employees versus male employees, and a lot of those were … incendiary comments,” McKitrick said. “Google got wind of this, fired him right on the spot, basically saying, ‘you violated our company culture and code of conduct policy.’”

McKitrick explains why Google took the actions they did, highlighting the concept of affirmative defense.

“Now, Google more or less had to fire the guy because this went public, number one. Secondly, from an affirmative defense standpoint, it really shows that, hey, Google – at least for show – doesn’t tolerate any gender diversity issues,” McKitrick said. “So, if someone, if a female, for instance, in the future were to file a claim of sexual harassment or gender harassment in the workplace, Google could point to this as an affirmative defense (and) say, ‘hey, we don’t tolerate this type of behavior.’ With that being said, certain parts of the individual’s memo, whether you consider it grounded in reason or not, certain parts of the memo were probably considered protected under a couple of different acts and pieces of legislation.”

Protection for Employees. What You Can Say and What You Can’t Say.

McKitrick notes it’s important to understand which pieces of legislation offer protection and which ones do not.

“A couple of things come into play here,” McKitrick said. “Number one, (the) first amendment’s off the table … the first amendment, the free speech everyone thinks about, that’s where you can maybe go out in your yard and say, ‘hey, America stinks,’ and the authorities can’t come at you for that … that’s what free speech is. Free speech doesn’t exist in a private sector, in a workplace environment. So, for instance, you as an organization, a company … can say, ‘you as an employee cannot say these certain things unless it’s protected in another way.’”

On the flip side, a different piece of legislation does offer a bit of protection to employees – in very specific instances.

“Title 7 of the Civil Rights Act prohibits employers from retaliating against employees, or discriminating against employees, if those employees are making justified comments that oppose unlawful work practices,” McKitrick said. “So, for instance, if I challenge my employer and say, ‘you’re not diverse enough, or you have a racial discrimination problem in the workplace,’ they can’t fire me; my employer can’t terminate me or discipline me for making those types of comments.”

“Title 7, on the other hand, does not protect me from making racist or sexist comments in the workplace, that’s something very different and they certainly can retaliate against me or discipline me for that. So, this engineer’s memo actually contained both sides of that. So, parts of that may be protected under Title 7; parts of it may not.”

Yet, another legislative piece must also be considered.

“But then there’s even another act, the National Labor Relations Act, which we think of more in the union context because it was born to protect employees’ rights to unionize and band together,” McKitrick said. “But the National Labor Relations Act protects an employee from making comments, or protects an employee from an employer discriminating against or punishing an employee for making comments about their terms and conditions in the workplace. So for instance if I complain to a coworker about my pay, my employer is not allowed to fire me. That would be a violation of that National Labor Relations Act.”

Exercising Caution About What You Say in the Workplace – And How You Say it – is Key.

McKitrick warns about the dangers of putting potentially harmful language into writing.

“And most employers have policies about whether social media … or email use, if I’m using a work computer, then I have no right of privacy to that email, that email’s on my company server, my company owns that computer, then I have no right of privacy and anything I say in an email, even if it’s just from me to you and we’re not copying anybody else, then it can be exposed and it can be used against me.”

Most companies these days have a social media policy in place, by which employees must abide. McKitrick provides examples of what might be permissible under a social media policy and what might not.

“… So, you have a National Labor Relations Union issue, because if … I’m talking to you in the hallway about my pay, I could send you an email saying, ‘boy, my company doesn’t pay me enough, these conditions stink, or my shift is awful.’ They can’t stop me from making those comments, so a social media policy that maybe prohibits me from making disparaging comments about my company in a public setting or my company’s customers (might be the kind of policy a company would have).”

“… If I say, ‘my company stinks and has terrible customer service’ … they can fire me for saying that, because that could go out to the public, that could get posted to Twitter or Facebook and that’s disparaging against my organization,” McKitrick said.

“If I say, however, ‘I think my boss is a bad individual, or I think he or she manages poorly and I think I’m paid too low’ – if I’m making those comments … about the terms and conditions (of my employment), that’s considered to be concerted activity protected under that section 7 of the National Labor Relations Act. It’s a fine line.”

Work Culture Plays a Big Role.

“It becomes a cultural issue more than anything,” McKitrick said. “And it’s a matter of … what kind of range do you want to put on your employees and what kind of control do you want to have. And as a company, how much do you actually control the culture of your employees or is it the employees building or making that culture?”

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