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Could former Google engineer have a valid retaliation claim?

Previously, we began looking at the case of James Damore, the former Google engineer who wrote a 10-page memo criticizing Google’s diversity policy. As we noted, Damore was fired after filing a complaint with the National Labor Relations Board, the agency responsible for investigating and resolving allegations of unfair labor practices.

Ordinarily, an employee can be fired for any reason at any time, with certain exceptions under state and federal law and absent any contractual agreements. This rule is known at at-will employment, and most employment contracts incorporate this rule. What makes Damore’s case potentially legally actionable is the complaint he filed with the National Labor Relations Board prior to his termination. 

As with other federal and state discrimination laws, the National Labor Relations Act prohibits employers from taking adverse action against employees for exercising their rights under the law. This includes the right to file a complaint with the board. The strength of Damore’s case would depend on the evidence of Google’s knowledge of the NLRB complaint, and the extent to which the complaint motivated its decision to terminate his employment.

In Damore’s case, Google may argue his NLRB complaint was not protected activity under the law. Google might also deny it had knowledge of the complaint at the time of termination. Even if it was determined that the company did have such knowledge, the company would likely assert that the complaint was not the reason for its decision. Depending on whether Damore sues under state or federal law could make a difference in how easy it is for him to prove his retaliation claim.

We’ll say more about this in our next post, and about the importance of working with experienced legal counsel when pursuing discrimination or retaliation claims. 

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