Google accused of violating labor law for asking workers to ‘refrain’ from talking about antitrust case

The Alphabet Workers Union filed a charge against Google with the National Labor Relations Board after Google management asked workers to "refrain" from talking about its ongoing Search antitrust case.

The union charges that Google issued an "overly broad directive" on discussing the case to employees, according to a copy of the charge filed in August and viewed by The Verge. On August 5th, just after US District Court Judge Amit Mehta issued his decision finding Google to have an illegal monopoly, president of global affairs Kent Walker sent an email (also reviewed by The Verge) directing employees to "please refrain from commenting on this case, both internally and 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 might chill protected concerted activity: actions by two or more employees together that are protected by labor law, like discussing working conditions. "I could certainly imagine that there would be ways that the case would ultimately bear on working conditions," says Charlotte Garden, a professor at the University of Minnesota who specializes in labor law. The DOJ has since suggested that remedying Google's anticompetitive harms could mean something as drastic as a breakup of its Android and Chrome businesses - something that could plausibly result in significant changes for workers in those units.

Still, Garden says there are some discussions employees might have about the case that might not be protected, like pondering how management should respond to the government. The NLRB will also weigh Google's legitimate business interests - perhaps including controlling the course of their own litigation or only authorizing specific spokespeople to speak on it on behalf of the company - and how likely management's statements are to chill protected conversations between employees.

"We respect Googlers' rights to speak about their terms and conditions of employment," Google spokesperson Peter Schottenfels said in a statement to The Verge. "As is standard practice, we're simply asking that employees not speak about ongoing litigation on behalf of Google without prior approval."

Even though Walker's email did not include an outright prohibition on speaking about the antitrust case, the NLRB could still find it to be a violation if it concludes it would likely chill employee speech, says Garden. The board will evaluate how employees did and were likely to interpret the email - either as general guidance that wouldn't be enforced or a line not to cross or risk getting in trouble or forgoing future opportunities, she says. To do that, Garden explains, the NLRB would look at employees' own reactions and interpretations of the directives and how the company has responded when workers went against such guidance 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. "I think that the company does have a history of silencing or retaliating against workers who speak about their working conditions or raise complaints with the company with things that they believe are wrong or unethical. So even if the language is a kind of corporate 'please refrain,' I think we can all see what's happened to some of our coworkers in the past who have raised concerns about different issues."

McMurtry pointed to the massive 2018 walkout 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 The Verge in 2019 that she was fired for creating a browser popup for employees letting them know of their labor protections. A Google spokesperson at the time did not confirm the employee's termination, saying they had fired someone who "abused privileged access to modify an internal security tool" but that it wasn't a matter of its contents. "It doesn't seem so far fetched that it could happen in this situation," McMurtry says.

McMurtry doesn't really know what his coworkers think about the outcome of the case and what remedies could impact their jobs because he says it's not really discussed. He doesn't even have much of an opinion on the remedies the DOJ has suggested so far but says being able to talk through it with his coworkers would make it easier to reach an informed opinion about likely effects on workers.

The case could take a while to resolve, if the NLRB even decides to take it up. Garden says a regional office would first investigate the charge to determine whether to move forward with it - though many cases settle before that happens. NLRB spokesperson Kayla Blado told The Verge that its Oakland office is investigating the charge, which was filed on August 15th. The NLRB says it typically takes seven to 14 weeks to determine the merits of a charge, which could kick off a case before an administrative law judge if the government chooses to pursue it. Meanwhile, Google and the Justice Department are set to return to court in April to argue about which remedies that judge should impose to fix Google's anticompetitive effects.