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Google sued for firing staff who claim they tried to follow 'Don't be evil' motto

Civil complaint dovetails with ongoing litigation over alleged union busting

Around 2001, Google adopted the motto "Don't be evil" to summarize its avowed values and to spell out the ethical behavior expected from employees.

That motto until late April or early May, 2018, featured prominently in the company's Code of Conduct. It read, "The Google Code of Conduct is one of the ways we put 'Don’t be evil' into practice. It’s built around the recognition that everything we do in connection with our work at Google will be, and should be, measured against the highest possible standards of ethical business conduct."

But a handful of Google employees who tried to put that motto into practice – by protesting company cooperation with US government agencies carrying out Trump administration immigration policies – were fired for their activities in 2019.

Having challenged the legality of their terminations with the US National Labor Relations Board (NLRB) – a case that remains unresolved – former Googlers Rebecca Rivers, Sophie Waldman, and Paul Duke on Monday filed a civil lawsuit in Santa Clara County Superior Court seeking to hold Google accountable for punishing workers who tried to follow their employer's behavioral directive.

"Rivers, Waldman, and Duke each engaged in activities consistent with Google's 'Don't be evil' contractual obligation," the complaint [PDF] says.

"Specifically, they questioned Google management regarding its intent to enter into a contract with the Trump administration's Customs and Border Protection ("CBP"), Immigration and Customs Enforcement ("ICE), and/or Office of Refugee Resettlement ("ORR") agencies which they understood were responsible for e.g. separating children from their parents, 'caging' immigrants, unlawfully detaining refugees and engaging in other human rights abuses."

Laurie Burgess, the attorney representing the plaintiffs, told The Register in a phone interview that Google's inclusion of those terms in its Code of Conduct had meaning to both parties and that Google can't choose to selectively disregard parts of its policy.

"Google terminated each Plaintiff's employment with it for adhering to the directive 'Don't be evil' and calling out activity by Google that each believed betrayed that directive," the complaint says.

The complaint outlines several occasions when Google has acted in accordance with its motto – abandoning its censored Chinese search service "Project Dragonfly," dropping its drone footage AI analysis initiative "Project Maven," and supporting employees in their desire to protest the Trump administration travel ban.

Google appeared to be following its anti-evil admonition when, in July, 2019, according to the complaint, Thomas Kurian, head of Google Cloud told employees that Google and Google Cloud would not be involved in projects associated with the US southern border and that Google products and services "would only be used for 'good stuff' such as crop protection."

The following month, the complaint says, Rivers found that Google had already offered CBP a free trial of its Anthos cloud platform. That revelation was incorporated in an internal employee petition that Rivers and Duke circulated, with the admonition to not share the details outside of Google.

Nonetheless, the Anthos deal leaked to the press. In September, Google's Global Investigations Team interviewed Rivers, Waldman, and Duke, and though, it's claimed, Google never identified any evidence implicating any of the three in the leak, all three were terminated on November 25, 2019.

In an internal memo, Chris Rackow, Google's VP of global security, accused the fired employees of violating corporate data security policies for conducting searches outside the scope of their jobs.

False and misleading

The complaint contends Rackow's statement was "false and grossly misleading" and accuses Rackow and Google chief legal officer Kent Walker, who similarly impugned the behavior of the fired workers, of slander.

The lawsuit notes that the plaintiffs were fired amid Project Vivian, an initiative to discourage employee labor organizing, formulated by IRI Consultants, a firm that helps companies avoid the formation of unions.

Coincidentally, on Friday, Google was rebuked by a Special Master in the plaintiffs' parallel NLRB litigation for withholding documents from discovery by claiming the materials are protected by attorney-client privilege.

Rivers, Waldman, and Duke, along with another fired Google activist Kathryn Spiers, who is also part of the NLRB case but not the civil lawsuit, subpoenaed Google documents to demonstrate that the company hired IRI Consultants in 2019 to help it come up with an anti-union plan. Google responded that it had more than 1,500 relevant documents but refused to turn them over, claiming attorney-client privilege.

Back in September, the NLRB assigned Administrative Law Judge Paul Bogas to review the supposedly privileged documents. His report, delivered on November 26, 2021, says that a large portion of the documents he reviewed consist of documents developed in consultation with IRI.

"Many of these documents are, or involve the development of, campaign materials in which IRI provides anti-union messaging and message amplification strategies and training tailored to the Respondent’s workforce and the news and social media environment," his report says.

Of 80 documents that he reviewed, only 9 are legitimately covered under attorney-client privilege, Bogas wrote.

What's more, he describes Google's request to IRI to launder the documents by sending them to a third-party legal firm so that, having been handled by lawyers, the files can be plausibly claimed to be privileged and immune from disclosure.

"My review did show that [Google] made significant contemporaneous efforts to give this non-legal, 3rd-party, material the facial appearance of privileged communications. The most telling examples of these efforts are the multiple documents among the withheld materials in which, rather than providing material directly to the [Google], IRI states that, at the [Google's] request, it is funneling the materials through outside legal counsel (Morgan Lewis and Bockius, LLP) so that outside legal counsel can then 'forward it onto [Google] under privilege.'"

On Thursday, the plaintiffs and Google are scheduled to meet with the NLRB to schedule trial dates. And once the two-year-old labor case resumes, Burgess – representing the plaintiffs both before the NLRB and in Santa Clara Superior Court – intends to call Google legal chief Kent Walker to testify.

The Santa Clara Court's consideration of Google's alleged breach of its "Don't be evil" contract is only just getting underway.

Google did not immediately respond to a request for comment. ®

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