Silicon Beat, the tech blog of the (San Jose) Mercury News, recently published an article by Ethan Baron “Google’s fired engineer: James Damore’s claim against search giant revealed” which contained the following factually incorrect statement:
California law allows employers to fire workers for virtually any reason — and the Constitutional protection of free speech doesn’t apply to private company workplaces.
In fact, it is illegal under California law, which is broader than United States federal law, to fire workers for many reasons including political activities or affiliations.
In practice, under the “at will” doctrine of employment it is generally difficult to prove that someone has been fired for an illegal reason. That is however different from saying it is legal to fire someone for virtually any reason.
It is, among other exceptions, illegal under federal law to fire a worker for various labor organizing activities and D’Amore appears to be making a case under these exceptions.
For those unfamiliar with the case, James D’Amore, then a Google engineer, wrote and distributed a detailed critique of Google’s gender diversity programs internally which was then leaked to the press causing a furor. Google apparently specifically requested feedback from engineers who had attended its diversity training programs. D’Amore was one such engineer. He was fired shortly thereafter.
Google incidentally is being sued for gender discrimination and the US Department of Labor is reportedly investigating the company for discrimination against its female employees.
Again, in practice under the “at will” doctrine it is difficult to prove someone has been fired for protected labor organizing activities. One can for example simply give a labor activist a poor performance review or even refuse to cite a reason. See, for example, this recent article on firings by Tesla: “Tesla employees detail how they were fired, claim dismissals were not performance related” (CNBC, October 17, 2017)
Because D’Amore appears to have been fired specifically for distributing a political document dealing with working conditions and employment policies at his employer instead of for a pretext such as alleged poor performance, however transparent the pretext may be, he probably has an unusually strong case. Standard Disclaimer: I am not an attorney.
The moral here may be to be careful about asking for honest feedback from your employees. They may give it to you. 🙂
(C) 2017 by John F. McGowan, Ph.D.
John F. McGowan, Ph.D. solves problems using mathematics and mathematical software, including developing gesture recognition for touch devices, video compression and speech recognition technologies. He has extensive experience developing software in C, C++, MATLAB, Python, Visual Basic and many other programming languages. He has been a Visiting Scholar at HP Labs developing computer vision algorithms and software for mobile devices. He has worked as a contractor at NASA Ames Research Center involved in the research and development of image and video processing algorithms and technology. He has published articles on the origin and evolution of life, the exploration of Mars (anticipating the discovery of methane on Mars), and cheap access to space. He has a Ph.D. in physics from the University of Illinois at Urbana-Champaign and a B.S. in physics from the California Institute of Technology (Caltech).