This article is directed at Google employees who participated in or wanted to participate in recent walkouts and signed open letters to management. Googlers stop wasting your time trying to form a union or engaging in public organizing efforts, there is a more effective way to get management to bow to your demands and without the risk of termination. There is no need to risk losing your job like Laurence Berland, Sophie Waldman, Paul Duke and Rebecca Rivers. Google management will squash your efforts to align with the Communication Workers of America. The CWA only wants your union dues and will never protect you from discrimination and retaliation under federal and state employment laws.
Back in the fall of 2019, the NY Times published an article about how disrespected Google employees were embracing and becoming inspired by a recently republished short book about labor organizing and solidarity to effect changes within the company. Curious, I purchased the small paperback to understand why Googlers were continuing to protest under the following call to action: “A company is nothing without its workers. From the moment we start at Google we’re told that we aren’t just employees; we’re owners. Every person who walked out today is an owner, and the owners say: Time’s up.” (Source).
The NY Times story summarized the current movement at Google as follows: “Some workers argued that they could win fairer pay policies and a full accounting of harassment claims by filing lawsuits or seeking to unionize. But the argument that gained the upper hand, especially as the debate escalated in the weeks after the walkout, held that those approaches would be futile, according to two people involved. Those who felt this way contended that only a less formal, worker-led organization could succeed, by waging mass resistance or implicitly threatening to do so.”
For Googlers, the way forward in their labor battle to effect positive change should not and cannot in any way remotely relate to a “labor organization” as that term is defined under the National Labor Relations Act. Management at Google has already brought in their consultants to “fix” the problem, mainly by convincing employees not to organize. There is a new way to maintain a collective voice but without the fear of reprisal and termination.
Just Say “No” To Unions
Googlers must vote “No” to unionization and collective bargaining, but vote “Yes”
to a decentralized and leaderless collective. Liz Shuler, the secretary-treasurer of the A.F.L.-C.I.O. stated in the NY Times article above, “You don’t have the law behind you to protect you like you would if you have recognized agents like a union,” Either you accept Ms. Shuler’s mantra, and that of union activists nationwide, or you move forward, all the way forward, and accept the advent of a new non-unionization movement that is happening right now. The NLRA won’t catch up to this new momentum because the statute is irrelevant. Management will not know how to quell this collectivism because there is no centralized labor organization to bargain with and that’s the essential point, it is leaderless and decentralized.
The Hong Kong Protest Method
Employees can now realize their true leverage to invoke change within their organizations, without the need to form a represented collective bargaining unit to address their concerns with management. I now propose the Hong Kong Protest Method to employment civil disobedience, but without the element of violence. A decentralized and leaderless movement that has no discernable identity for government regulators to challenge them. Yet the protest movement in Hong Kong fully describes its’ strategy of inclusion via Wikipedia, “[t]hrough a participatory process of digital democracy activists are able to collaborate by voting on tactics and brainstorming next moves in an egalitarian manner in which everybody has an equal say. Telegram chat groups and online forums with voting mechanisms to make collective decisions have facilitated this type of flexible co-ordination.”
Googlers now have access to technology on their phones to air their concerns collectively under the radar in order to defeat a formidable opponent like management. Under the cloak of pseudonyms on message boards, airdrop communication broadcasts and other forms of subversive communications, employees can complain about important issues such as forced arbitration, sexual harassment, ending pay inequality, boycotting Project Dragonfly, without the fear of retaliation. What has worked in Hong Kong can work here inside of Google.
It is time to begin and give the real owners of Google a fair say in the direction of the company. Management will have no choice but to tolerate your dissent, because Google can’t fire all of you!
If you would like more information about this article, please contact Mark Carey at firstname.lastname@example.org or 203-255-4150.
By Jill Halper
Many of us have been in a work situation where we’ve had a boss or supervisor who does not respect our personal time. If it is on his or her mind, there is a primal need to share and address immediately, regardless of the where or when. After putting in a long day on the job, you come home to after-hour work emails or texts that seem to have some urgency, or why else would your employer not wait to contact us about the work matter the following morning, DURING WORK HOURS? In a world now defined by virtual immediacy and constant connectivity, it has become increasingly difficult to shut down and turn off our electronics. And because we are always reachable, it becomes instinctual to promptly respond, if not impossible to ignore communications as they arrive, especially when the reach out is from a hire up at work. As a result, your “9-5” job can quickly morph into a 24/7 situation. The problem with that, besides the obvious interruption to your valued personal down time, is that you are only being compensated for your designated hours and every email that you respond to or even read outside of those hours is being done at your expense and at your employer’s gain. Not only is this inherently unfair, it might even be unlawful. In fact, in Europe, employees have the legal right to disconnect from work, and the U.S., and New York and Connecticut in particular, may not be that far behind in this trend.
A Simple Solution
The solution to all of this might seem simple and just be one of being paid overtime for any communications that take place outside of your regular hours. However, overtime compensation is already clearly defined by the law and many employees are exempt from overtime pay. Generally, an employer has to pay overtime, time-and-one-half of wages, to any employee who works more than 40 hours in one week. And that work might and should certainly include responding to work related emails and texts. But an employer does not have to pay overtime at all, regardless of how many hours worked or when those hours are worked, depending on the title and/or specific job duties of that employee. For the most part, an employee is “exempt” under the overtime law if they fit into the category of executive, administrative or professional. If you think you are not being paid overtime for which you are entitled, you should contact a labor and employment attorney and/or contact the Connecticut Department of Labor to better understand your rights.
What If You Are Not Entitled to Overtime Pay?
So, what about the class of employees who do not benefit from the overtime laws? What right do these employees have in the workplace when it comes to a boss who does not value your personal time outside of the office? Generally, employment in Connecticut is “at-will,” which means that an employer can make unilateral decisions regarding almost anything, including an employee’s duties, hours and/or compensation. Unfortunately, in an at will arrangement, the employer can do things that might seem unfair and out of line, such as emailing you repeatedly over the weekend or at night. Taking this a step further, because an at will employee can be terminated or disciplined at any time, for any reason, as long as it is not a reason expressly prohibited by law, an employer can not only require or expect you to stay connected outside of your usual work hours but may even have the right to take an adverse action against you if you fail or refuse to engage. In these instances, it is important to take a deeper look into the narrative and nuances surrounding these off-hour communications. If you are treated differently in this regard than other employees, or if your employer has different expectations of you when it comes to requiring you to attend to such communications, this may be unlawful behavior if you are a member of a protected class because of your age, gender or race. In those instances, you should contact a labor and employment attorney to better understand your rights and potential for monetary damages against your employer for the disparate discriminatory treatment.
The French Have a New Solution- Right to Disconnect Law
However, what can be done if you are exempt from overtime pay and there is no discriminatory motive that would make excessive, off-hour communications unlawful? This is the very scenario that France has recently addressed in their new ‘Right to Disconnect’ law. This law that went into effect on January 1, 2017 gives French employees a qualified legal right to ignore work emails outside of normal business hours. The law was designed to curtail unfair and uncompensated work related technology use and communications and requires companies with 50 or more employees to develop policies with their workers that limit work-related electronic communications use after hours. Covered firms are required to negotiate email guidelines with their employees to regulate email use to ensure employees are able to possess time away from the office. If employers and employees cannot agree on an appropriate policy, then the employer is obligated to publish a charter that regulates when employees can disconnect.
New Law Would Promote A Work Life Balance
This is not only a clear victory for employees abroad, but it has sent a clear and strong message back in the states. This new law alleviates the cognitive, psychological and emotional load that employees suffer when responding to a work task on personal time. Interruptions at home disrupt the relaxation and recovery process that is necessary for healthy work-life balance. Research suggests that never “shutting off” increases stress and has both physical and psychological effects that has led many companies, such as Google, to hire mindfulness experts to help employees disconnect and clear their minds.
New York City Right to Disconnect Law
But, will the US formally embrace a similar policy to that recently enacted in France? The answer is a definite maybe, particularly if you live and work in New York City. A new bill has been introduced that would ensure private employees in New York City have the right to disconnect from work. READ THE BILL (.pdf). The law aims to give workers a break from texting, calling or emailing when off the clock and will give the employee the right to disconnect without fear their bosses are going to fire them, discipline them or cut their pay. While an employer can still contact the employee, the employee has the right to decide if that phone call is more important than their personal time. In sum, the proposed law would make it illegal for a company to require employees to access work email and other communications outside the office. It would apply to regular time off, sick days and vacation time, and covers all employers with 10 or more workers. Overall, it would require employers to adopt a written policy governing the use of electronic devices and other digital communications during non-work hours, and would set forth the “usual work hours” for each class of employee, and the categories of paid time off available to employees. The law would prohibit retaliation against employees, who exercised or attempted to exercise any right to disconnect. As stated above, currently, nonexempt employees who are experiencing work-related communications outside of their usual work hours are generally required to be paid and protected under the Fair Labor Standards Act and therefore, those non-exempt employees are not the focus of this bill.
Will Connecticut Enact a Right to Disconnect Law?
The word on the street is that Connecticut may follow suit and lawmakers are considering introducing similar type right to disconnect legislation. But that could be years down the horizon, if ever. So, until then, what can you do if you are being barraged with off the clock/off-hour texts or emails from your employer? You can petition your local representative and lobby to get momentum on a right to disconnect bill in Connecticut. You can also petition and form a coalition with your fellow employees to negotiate guidelines, if your employer is a large enough and forward thinking enough company, such as Google. Lastly, you can seek labor and employment counsel to determine if you are either a non-exempt employee protected by the FLSA overtime laws, or if you are an exempt employee (admin, executive or professional) who believes the off-hour communications are routed in or motivated by some unlawful context or motive such as discrimination or harassment. Or you can relocate to Paris!
Feel free to contact this office at any time to discuss your right to disconnect, to receive overtime pay or to address any of your labor and employment needs.
By: Jill Halper
At first glance, the word arbitration might sound like a less formal, lower cost, friendlier process than litigation. Certainly, in theory, it can be those things. But let’s talk about what it can also be…. forced arbitration can be devastating. It is an unconstitutional, unfair process whereby employees are prevented from suing their employers for potentially violating the law and are forced to have their claims heard and adjudicated in a private binding arbitration. This quasi-legal forum with no judge and no jury should be avoided by employees in almost all instances and to all extents possible.
Forced arbitration, also referred to as mandatory arbitration is an alternative form of binding dispute resolution used to resolve legal disputes out of the courts. Arbitration is “forced” when your employer requires you to sign away your right to go to court at the start of employment and before any legal dispute has arisen. Many forced arbitration agreements also ban groups of employers from coming together to file class action lawsuits. These forced arbitration provisions can find their way into employment offer letters, employment agreements, employee handbooks and even emails where the employee is instructed to electronically accept. Mostly, this occurs at the hiring stage, but there are times when arbitration agreements are presented in any of these forms after hiring and during the course of your employment and as a condition for continued employment, i.e. “forced”.
What you need to understand is that forced arbitration strongly benefits corporations and employers. Forced arbitration obstructs an employee’s pursuit of justice, violates employees’ civil rights and fails to hold employers accountable to employees and to the public. The mere fact the arbitration is forced and getting the job or being allowed to keep your job is a condition of entering into an arbitration agreement should make your hair stand on end. Here are just some of the ways forced binding arbitration can hurt you.
Arbitrations Are Private, Confidential and Not Transparent
For one, and what I see as the most serious concern with forced arbitration is that they are conducted in private, not publicly filed, and deprive plaintiffs of their day in court and the right to conduct discovery and a trial by jury. As such, forced arbitration is in fact arbitrary. They lack utter transparency, accountability and the employer is able to shield unlawful and unfair practices from the public. Not only is that a problem as a matter of public policy, but practically it takes away the leverage an employee might have to get an employer to the settlement table for fear of making their grievances public. The employer has no obligation or incentive to be transparent and to make things right. As a result of all of this, forced arbitration facilitates the perpetration of discriminatory and other unlawful and improper behavior in the workplace by preventing victims from being heard in an open court of law and preventing their complaints and stories from being made public. In addition, because there is no “verdict” and the findings of forced arbitration are private and confidential, there is no ability for future plaintiffs and their attorneys to uncover company-wide data to expose patterns and prior practices of discrimination and violations. In addition, arbitration does not yield publicly filed decisions and as such does not create legal precedent to inform future plaintiffs and their attorneys on whether laws have been violated and how to apply these laws to particular fact patterns.
Arbitration Favors Employers Not Employees
In addition to the above, forced arbitration strongly favors employer corporations as the employer selects and hires the arbitrator. In a court of law, neither party has the ability to select a judge and the process is blind. In addition, it is not uncommon that corporate executives may not only travel in the same social circles as the arbitrators and may be personal acquaintances of each other, but that corporate employers are often repeat offenders and as such become known by individual arbitrators in a particular market. Moreover, forced arbitration can be prohibitively expensive as plaintiffs may be required to share and sometimes even cover all of the fees, which include attorney fees. As in a court situation, both parties will want attorneys to represent them at an arbitration, so the costs can be significant on the flip side, there are far fewer options for pro bono counseling. Also, forced arbitration is binding and the rulings are final. It is almost impossible for employees to appeal an unfair or erroneous decision, as may be done in a court of law. Lastly, forced arbitration are subject to little if, any government oversight.
Employers Are the Clear Winners In Arbitration
In light of the above observations, employers and big business are the clear winners in this unjust and unfair process. The majority of time, forced arbitration results in favorable outcomes for employers. In fact, research shows that arbitrators are more likely find in favor of your employer and that employees are 1.7 times more likely to win in federal courts than in arbitration and 2.6 times more likely to win in state courts than in arbitration. In addition, forced arbitration settlements yield significantly lower damages for employees than in federal and state courts. (Sources: bit.ly/EPIArbitrationStudy, bit.ly/CPDArbitrationStudy)
Can Employees Avoid Arbitration?
So, what can employees do about this? You are already on your way as the first step is being informed. Now that you know how devastating a forced arbitration agreement can be, you will surely be aware of their existence in an employment context and take caution before entering into one. Remember that because forced arbitration benefits the employer, it is in their best interest that you sign on the dotted line. In order to accomplish this, they will often try to sneak a forced arbitration provision into your hiring paperwork. Courts have held that because employees entering into arbitration agreements are giving up their right to their day in court and a trial by jury, employers need to make these arbitration provisions obvious and bold and specifically identify the employee is waiving their right to a jury trial. Still, employers do not always comply with these common law requirements and it is easy for employees to get duped or pressured into signing away, especially when these agreements are forced, and a job offer or continuation of employment is at stake. As such, you must read all of your employment documents very carefully and it is advisable to seek legal counsel before accepting or signing anything. Also, be on the lookout for an email communication that may come anytime during your hiring or on-boarding process (or even later) that addresses arbitration. When presented in this form, there is usually a single step “option” to opt out of or opt into arbitration. It may be the case that just be failing to click the opt out, you have implied your consent to agree to arbitration. So again, you need to be very careful and immediately consult an attorney if any such email appears in your inbox.
Employees Can Negotiate and Sue to Avoid Arbitration
What else can you do to protect yourself in this situation. Because these arbitration agreements are forced and a condition of employment, you may believe that you have no choice but to sign in order to get or keep your job. For one, that is not always the case and experienced legal counsel in these matters can fight for you and attempt to negotiate this provision out of your agreement. In addition, we implement other legal strategies to protect our clients from these provisions such as the use of a sworn affidavit created and entered into by the client contemporaneously at the time of signing an employment/arbitration agreement; the employee makes a sworn statement that it was not their intention to sign an arbitration agreement, but that they had no choice and did so under duress and coercion. This can be helpful in the event there is a future legal dispute between the parties and the employer invokes the arbitration clause in an attempt to keep the matter out of court and compel arbitration. We can use this sworn affidavit as part of our practice in fighting the validity and enforceability of the arbitration agreement as it relates to the intent of the parties at the time the supposed contract was entered into. We also file suit in court seeking a declaratory judgment action as whether the client had the intent to enter into the arbitration agreement.
Google Bans Forced Arbitration Agreements for All Employees
While all of this sounds rather scary (and it is), the good news is the courts and even some big business are seeing this the way we do, and strides have been made to get rid of forced arbitration. In one amazing example, the corporate giant Google recently promised to end mandatory arbitration for all current and future full-time employees, including temps, vendors and contractors by March 21, 2019, in order to resolve disputes such as harassment, discrimination or wrongful termination. Google employees, alarmed by this unjust practice actually banded together not through a union, and created Googlers for Ending Forced Arbitration. Through these grass roots, call to action efforts, a powerful and large coalition of 20,0000 plus employees was formed that stood up to their employer Google and worked to yield this ground breaking and encouraging outcome. Both Google and their employees should be lauded for this brave endeavor and perhaps (hopefully) other big business and band of employees can affect similar outcomes.
Congress Takes Action to Ban Forced Arbitration Agreements
To help this along, law makers are also seeing the light when it comes to forced arbitration. House Democrats recently (February 28, 2019) introduced a major bill that would protect access to the court system to millions of US employees. The Restoring Justice for Workers Act, which would ban businesses from requiring workers to sign arbitration clauses, is still being considered by congress. If the legislation is passed, it would positively impact millions of US workers by giving them back their right to remove themselves from the unfair arbitration forum and have their potential claims heard in court.
If you are presented with a forced arbitration provision as part of your hiring documents and/or employment agreement, or at any time during your employment, do not sign until you consult with an employment law attorney. You will be giving away your rights and we caution you against doing so. Feel free to contact this office and we will be able to counsel you on this important issue, or help you with any of your employment law related needs.