The World Has Gone #Crazy

On November 1, 2018, Google employees took hostages and made 5 demands or something like that. Actually, on that day, over 20,000 Google employees in 50 cities walked out of work over the tech giant’s stance on sexual harassment. The protest even had its own twitter handle, #Googlewalkout. Not too clever, but certainly clear enough.  

The dust-up emanated from an October 25, 2018 NYT article, the same folks who brought you Harvey Weinstein in October 2017, which reported that in 2014, Google gave Andy Rubin (of Android fame) a passionate kiss goodbye with a $90 million severance package after he was found to have sexually harassed a subordinate. Google’s CEO and VP of People Operations (that’s what those Millennials call HR today) immediately countered with  an all-hands email explaining that in the last 2 years the company fired 48 employees, including 13 senior managers, for sexual harassment and none received severance. Yeah that revelation didn’t seem to appease the Googlers, probably because that email just confirmed that there’s been an awful lot of sexual harassment going on around there. And it’s no wonder: combine nap-pods and all the expresso you can drink and what do you think is going to happen? No good can come from having places to lie down at work. Those kids should nap in their chairs like we do!

Social media continues to fuel this movement, as Pew Research recently reported, #MeToo has been used on Twitter over 19 million times, which is more than 55,000 times a day. #OMG! Not surprisingly, the EEOC has reported that the number of sexual harassment charges filed with that agency alone is up 12% this year and that it has recovered $70 million for employees claiming sexual harassment in 2018, up from a mere $47.5 million in 2017.

Two of the Googlers’ 5 demands are worth reviewing. The first is an end to mandatory arbitration. This year, Microsoft and Uber very publicly took the lead on terminating mandatory arbitration for sexual harassment cases, and New York  enacted a law prohibiting arbitration of sexual harassment claims. Ironically, we’ve never been fans of arbitration for employers. Among our reasons, there is no real opportunity for summary judgment, which means that every arbitration case goes to “trial.” Think about it: what arbitrator is going to dismiss a case that he/she will get paid hear? There is also no right to appeal an arbitration decision unless you find out that the arbitrator is the Plaintiff’s brother-in-law (which actually could still give you a shot at winning). Even a bad judge or runaway jury can be appealed to a higher court. Arbitrations now also entail as much discovery as court cases so there is no saving of legal fees. Equally as important is that arbitration cases are heard much more quickly than court cases. That is rarely if ever an advantage for an employer. Finally, employers must pay the arbitration fees; there is no splitting. So in the end, giving up mandatory arbitration is a good thing for employers.

The second demand worthy of discussion is, “A clear process for reporting sexual misconduct safely and anonymously.” Process has been an important topic in the last year. Much has been made of the claim by some employees that when the harassment comes from senior managers or even the CEO, HR may be powerless to take appropriate remedial action, especially in companies where there is no Board of Directors. For years, the law has been clear that if an employer has a policy that prohibits sexual harassment and identifies to whom complaints can be brought, employees are obligated to follow the policy and give the employer a chance to fix the problem. A federal appeals court with jurisdiction over New Jersey recently upset that happy place. That court said that if an employee bypasses the complaint procedure and sues because of a “legitimate fear of the possible consequence” of reporting the harassment, the employer can still be found liable. The fear of retaliation must have a basis in fact but this decision means that employers need to be careful to establish a clear path for employees to complain about anyone, even the top dog, without the opportunity for retaliation. That might mean some redesign of policies and the empowerment of an HR professional or even someone outside of the company to determine the outcome of sexual harassment claims.

Our chief concern in all of this is the accuracy of all those Google searches we did on November 1 when all the Googlers were running around carrying signs. Who was checking the facts????