2019 must be the year to end forced arbitration.
Tomorrow, our CEO Sundar Pichai will testify before Congress to answer questions, many about issues of trust and privacy. But just as Google wants to convince the public that it can handle consumer privacy matters behind closed doors — it tells the same to its employees by forcing arbitration, requiring them to waive their right to sue or participate in a class action lawsuit in all cases of discrimination. And just as it will try to convince Congress that it has the public’s best interest in mind in company decisions, it has neglected to fully engage with its workforce’s broader demands for a more equitable workplace.
Six weeks ago, 20,000 Google employees and TVCs (Temps, Vendors and Contractors) walked out to protest discrimination, racism, sexual harassment and a workplace culture that only works for some. One week after the walkout, our leadership team responded to our five original demands with a handful of partial policy changes. The other ‘changes’ they announced simply re-stated our current, ineffective practices or introduced extraneous measures that are irrelevant to bringing equity to the workplace.
Our first demand was to end to forced arbitration for the entire Google workforce and allow every Google or Alphabet worker to bring a co-worker, representative, or supporter of their choosing when meeting with HR.
Google leadership responded with the following three changes:
Arbitration: We will make arbitration optional for individual sexual harassment and sexual assault claims. Google has never required confidentiality in the arbitration process and it still may be the best path for a number of reasons (e.g. personal privacy), but, we recognize that the choice should be up to you.
Bring a colleague: We’ll establish a global process that will allow Googlers to be accompanied by a companion during an HR investigation, or when raising/reporting any harassment or discrimination concerns to HR. We’ll start with a Q4 pilot of sexual harassment concerns to learn from, and scale this to all types of harassment and discrimination concerns in Q1.
Investigations Practice Guide: We’ll commit to implementing & publishing internally an Investigations Practice Guide, outlining expectations for how concerns are handled within Google. This Guide will clearly outline what Googlers can expect during the investigation process and/or how their concerns will be handled. We’ll seek input from Googlers who have participated in the investigations process before finalizing the Guide. We’ll commit to reviewing the Guide annually and updating it as required.
Here’s our assessment:
- Arbitration is now optional for individual cases of sexual harassment / assault for full-time employees only.
- Temps, vendors and contracts (TVCs) compose over 50% of our workforce, but might still be forced into arbitration in all cases, including sexual harassment / assault, based on their Supplier’s employment terms.
- Arbitration is still forced for any case of discrimination related to race, religion, national origin, sex, sexual orientation, gender identity, age or disability. Google uses Judicial Arbitration and Mediation Services (JAMS) as the arbitration firm, a for-profit company. JAMS does not publicly disclose the diversity of its arbitrators anymore. However, when we looked at that same diversity web page 2017, JAMS confirmed their arbitrators had an “overall composition of 22% female and 9% persons of color”.
- An employee still cannot bring a class action lawsuit even in cases of sexual harassment.
- Reporters of harassment or discrimination can bring only a colleague, not any other type of representative (such as outside counsel). Currently, these reporters are left outnumbered when reporting an incident.
- U.S. employee contracts still have the arbitration waiver in effect. We have not heard of any plan to render these waivers null and void. Google operates in 52 countries where arbitration laws vary, and leadership has not addressed these variances. What should we expect?
- For the policy change around bringing companions, we have no insight into the parameters and / or success criteria of the pilot. Will we be privy to the results?
- The rules around whether the companion can / cannot be a witness are still ill-defined. Will they be advised of potential testimony invalidation?
- Google also needs to specify during which part(s) of the process these companions will be allowed. The response statement indicated a practice guide, but does not commit to a timeframe for publication.
20,000 Googlers walking out of work was the first moment in an escalating movement. Since then, we’ve heard from tech workers at 15+ other major tech companies about their experiences. We vow to fight together in 2019 until forced arbitration is abolished for all our FTE and TVC colleagues.
When the US Congress comes back into session in January, it will debate the Arbitration Fairness Act, sponsored by Senator Blumenthal, and the Restoring Justice for Workers Act, sponsored by Representative Jerrold Nadler. These laws would call for the end of forced arbitration for not just cases of sexual harassment and sexual discrimination, but all forms of discrimination based on race, religion, national origin, sexual orientation, gender identity, age or disability. We call on our elected officials to ensure we get a vote on these measures and require they extend to an employer’s suppliers to provide equality for all workers.
Today we ask all our fellow workers industry-wide to join our fight to end forced arbitration for all forms of harassment or discrimination. Click here or direct message us via Medium / Twitter @endforcedarb to join us as we build our coalition.
We are already engaging with multiple organizations and can help connect the dots through educational materials and organizing resources.
2019 must be the year to end a system of privatized justice that impacts over 60 million workers in the US alone.
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