NLRB Advice Memorandum in the Damore/Google situation – part (i.e., mostly) protected speech, and part unprotected speech, and Google acted appropriately (based on the current facts and evidence)

Below, at the bottom of this post, I have provided a link to the National Labor Relations Board Office of General Counsel internal Advice Memorandum in the Damore/Google situation. You may recall, and very broadly or generally speaking, over a short period of time (i.e., a few months) Mr. Damore, who was an employee at Google, posted comments about Google’s diversity initiatives and about diversity or women and men in general, whereupon after the period of time and development of the situation Google fired Mr. Damore.

The internal Advice Memorandum is extremely interesting for its discussion about employee comments that are or might be protected, and comments that are not protected, and about the situation at Google that the Advice Memorandum concludes involved primarily protected speech which eventually was also in combination with unprotected speech.

The Memorandum also is interesting for the additional facts that it provides about the timing, the factual situation, and how Google handled the situation as it developed; however, keep in mind that the Memorandum is provided without full knowledge about who did what and who communicated what and at what time, as discovery including document requests and production, and depositions are missing or have not yet occurred. The Memorandum advice might be different if discovery could prove the facts otherwise, such as if discovery established that Mr. Damore was not fired due to the comments that he made that the Memorandum concludes were unprotected (see the two bullet point comments near the bottom of page two of the Memorandum).

The Memorandum also is interesting because it appears to conclude that most of Mr. Damore’s comments were protected speech, apparently except specifically for the two comments that are indicated at the bottom of page two of the Memorandum, wherein the Memorandum indicates that Mr. Damore commented that there are or might be IQ differences between women and men, and neuroticism and stress level differences between women and men which might in part account for there being fewer women in high stress or tech company jobs.

Frankly, given the facts and evidence that the NLRB was working with at this time, I am surprised that it took so many pages for the Advice Memorandum to reach its conclusion that Google acted appropriately. I also find the Memorandum lacking in detail and support on several of the factual evidence and timing matters.

I am also surprised that the Memorandum included some of its general or broad-based comments which probably are not necessary in this situation, such as “Where an employee’s conduct significantly disrupts work processes, creates a hostile work environment, or constitutes racial or sexual discrimination or harassment, the Board has found it unprotected even if it involves concerted activities regarding working conditions” (see page four of the Memorandum), and “In furtherance of these legitimate interests, employers must be permitted to ‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace,’ rather than waiting until an actionable hostile workplace has been created before taking action” (see page four of the Memorandum).

It is important for employers and employees to realize and understand that the Memorandum concluded, based on the currently available evidence, that much or most of Mr. Damore’s comments about Google’s diversity program and initiatives were protected speech, but that the situation at Google and comments being made were developing and changing over a period of months (apparently from June through perhaps August, 2017 or even later in 2017), and, thus, the Advice Memorandum also concluded that at some point the comments by Mr. Damore exceeded the scope of protected speech for the reasons stated (i.e., comments about possible biological differences between the sexes, “Thus, while much of the Charging Party’s memorandum was likely protected, the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected” (see page five of the Memorandum)).

Thus, these are or can be complicated situations when employees are expressing comments, assertions and protected speech, or mixed protected and unprotected speech, about the work environment, or about diversity programs or initiatives, or about political views, or other protected speech, and when an employee’s comments, assertions and speech exceed, or eventually in part exceed, the scope of protection or the protected area, or are entirely about unprotected topics and issues, or otherwise are unprotected in nature.

Here is the link to the NLRB Advice Memorandum (unfortunately with redactions),

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