Brishen Rogers —
Yesterday morning, tens of thousands Google employees walked off the job in Dublin, London, Singapore, Zurich, Haifa, Berlin, New York, Ann Arbor, and many other cities. The immediate spark for the protests was revelations that the company had given generous exit packages to a few executives credibly accused of sexual misconduct, including one accused of “coercing [a subordinate] into performing oral sex” in 2013. But the workers also have broader, more longstanding grievances with the company’s leadership regarding gender equality: as the Times reported, “tensions over the treatment of women in the workplace have simmered for years…with disrespectful remarks coming from executives and the rank and file alike.” Plus, many Google employees have balked at the company’s participation in Department of Defense projects and its development of a censored search engine for the Chinese market. Given this widespread discontent, support for a walkout went viral: organizers said a few days ago that they expected around a thousand workers to participate, but instead it now appears that tens of thousands did so.
What to make of all this? At first glance, it may seem sui generis—a sudden expression of outrage by workers who feel Google hasn’t lived up to its own values, particularly in the era of Me Too. But I think it is more than that: yesterday, Google went on strike. The walkout resembles other recent strikes in non-unionized workplaces, including the recent “Red for Ed” teachers’ strikes and the “Fight for $15.” In that regard, it highlights both strengths and weaknesses of U.S. labor law, and suggests broader lessons for students of law and political economy.
The key backdrop here is that under U.S. law, workers have no rights to bargain collectively—or even to be consulted around any management decisions—unless and until they select a union as their representative, within an appropriate bargaining unit, via a majority vote. In contrast, in Europe, workers often have some collective voice as a matter of right. Our system is instead “all or nothing”—workers have a union, or they have no formal voice at all. For a variety of reasons, not least management’s ability to resist unionization under current law,this system leaves most workers with no voice. This feature of U.S. law is a major causal factor behind the decline in private sector unionization since the 1970s, which in turn drives ever-increasing economic inequality.
Yet even without unions, workers in the U.S. often take collective action to improve their working conditions. Under a classic 1962 Supreme Court case, they have the right to do so even if they are not trying to unionize. This tactic has recently become quite important in the low-wage labor market. For example, early in this decade Walmart workers held short strikes each year on “Black Friday,” the Fight for $15 has organized escalating day-long or other short strikes among fast food workers, and carwash workers in New Mexico have used similar tactics to get better working conditions, even without a union.
Meanwhile, in recent years, social movements have increasingly turned to social media to organize large-scale protests with bold moral messages. The leading examples here in the U.S. include Black Lives Matter, the Women’s March, and the March for Our Lives. As I argue in a forthcoming paper, the West Virginia teachers’ strike illustrates that workers can also organize that way. The teachers mobilized toward a strike via Facebook pages, streamed their strike votes on “Facebook Live,” a video service, shut down the school system statewide, and then rejected an initial settlement offer following Facebook deliberations. The Google workers clearly have tapped into this emerging culture of protest—organizing around clear moral demands, in large numbers, and largely via social media.
Labor law is on their side. While the organizers deemed their action a “walkout,” it was, legally speaking, a strike: a coordinated refusal to work, with the goal of getting the employer to change terms of employment. As such, it is clearly “protected,” meaning that Google can’t lawfully discipline workers merely for participating. It does not matter here that the key demands centered on pay equity, an end to forced arbitration, and sexual harassment policies rather than wages and benefits per se. Pay equity is a so-called “mandatory subject of bargaining,” meaning an issue that an employer must negotiate over, and the Obama Board held that efforts to enlist co-workers’ assistance in preventing or remedying harassment were protected.
This turn to concerted action around sexual harassment makes strategic sense. Inside companies, sexual harassment allegations are investigated by human resource departments who are accountable to the company, not to workers. While unions haven’t focused on sexual harassment historically—and have often been part of the problem—they can alter that power dynamic by giving workers an independent voice which represents them in such investigations. Indeed, another of the Google workers’ demands—that employees be able to bring a co-worker or representative to meetings with HR, “especially when filing a harassment claim”—is a classic union tactic when workers are facing possible discipline.
The workers also made a final, quite ambitious demand: that the company “appoint an Employee Representative to the Board.” While dedicated board seats for workers are rare in the U.S., they are legally required for large companies in many European countries, most notably Germany. Senator Elizabeth Warren introduced legislation over the summer that would mandate employee board seats in the U.S., and the Roosevelt Institute has also been researching the idea. That request, in my view, shows that far more is at stake here than a few company policies: Google workers want a stronger voice within the firm.
What will happen next? Presumably the workers will continue to press their demands, both inside the company and through public speech and, where necessary, public protest. Google could try to quash their efforts, but that seems unwise. Retaliation would generate bad press and meritorious lawsuits, and Google employees are highly skilled and difficult to replace, much like the West Virginia teachers. Plus, at this point they are surely feeling energized, so retaliation would spark even more protests. Google’s best option is therefore to strengthen its sexual harassment and other policies, and to be more responsive to workers’ concerns going forward.
And here we see, again, both the promise and the limits of our labor law. On the one hand, it protects actions like this, enabling workers to build informal organizations that take concerted action to improve working conditions. That alone alters the political economy of work by injecting democratic norms and First Amendment values into the private sector workplace. On the other hand, our labor law makes it unduly difficult to institutionalize worker voice and power within the firm. Many trade unionists and labor law scholars today are focused on addressing those issues, proposing solutions that run the gamut from minority unions to guaranteed collective worker voice.
More broadly, the Google strikes bring to mind a core legal realist insight, one recalled often on this blog, that the rules constituting and governing the firm and the “market,” while often barely visible from day to day, still structure our political economy in profound ways. Today those rules do not guarantee workers any real voice in what happens within their workplaces. But they could.
Brishen Rogers (@BrishenRogers) is an Associate Professor of Law at Temple University Beasley School of Law and a Visiting Fellow at the Roosevelt Institute.