Google says its sex misconduct policy change doesn't apply to claims in progress
buzzfeednews.com
buzzfeednews.com
It seems weird to me that they wouldn't retroactively apply the policy unless there's something to hide within whatever currently claims they have. You would think that the exposure would be similar, unless they strategically plan on doing something different with the future claims, like either restricting or dealing with them much faster so that they don't reach this stage, etc.
Google isn't a legislator but its policies do affect many people. For example, in the context of laws, see: https://en.wikipedia.org/wiki/Ex_post_facto_law
"In the United States, Congress is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the United States Constitution. The states are prohibited from passing ex post facto laws by clause 1 of Article I, Section 10. [...] Thomas Jefferson described them as "equally unjust in civil as in criminal cases"."
(To be fair, the article cites exceptions)
Surely you would only be applying rules retroactively if you were engaged in reopening finished arbitration?
Cancelling a current process that is still in open session, on the basis that you have already publicly agreed that employees being forced into that process is unfair, is not being retrospective.
If the announcement set Day 0 based on the date of the claimed harassment, that would be extremely suspicious, and I think the most natural reading would be some specific issue that's been resolved, but could produce exceptional damages. With a date-of-claim threshold, that seems much less likely; any kind of serial misbehavior or other mishandling that Google expects to avoid in the future could still create liability via claims not yet filed.
A few legally-inclined people elsewhere in the comments have pointed out that "adding the option to leave arbitration" behaves differently than "not forcing arbitration to begin with". Most non-forced arbitration is still binding, which means that neither party can start arbitration and then pursue a lawsuit after seeing the result. Opening a one-time option to leave ongoing arbitration would be much more similar to entering non-binding arbitration, a move lawyers frequently counsel against.
The proceedings of non-binding arbitration are almost never admissible in subsequent court cases, and the process lacks formal discovery. As a result, there are unpleasant tactics like entering non-binding arbitration, obtaining useful information (e.g. someone's schedule, or information of who knew about a behavior), and then pursuing a lawsuit with added or altered claims based on that information.
1) Lawyers advised them to do this, and they did (Very likely)
2) Lawyers advised them otherwise, but they did this instead (Unlikely)
3) Lawyers not involved in this decision at all (Highly unlikely)
So essentially, Google follows the advice of their lawyers?
If Google's goal is truly to create a safer work environment for everyone, then this is a no-brainer. They had zero problems giving a known-harasser millions to walk away quietly but now they're fighting to avoid responsibility for cases already in the system. Reeks of hypocrisy.
Then again, my lawyer friends aren't google lawyers.
Which is how things should stand - obviously morally, but even from a "ruthlessly maximize shareholder value" perspective. It's at least possible that reputational damage cashes out as a bigger financial risk (e.g. via lost staff, failed recruitment, or new regulations) than increased damages from lawsuits. Corporate counsel is almost certainly not the most qualified to calculate the size and likelihood of those risks. (And morally, of course, it would amount to Pichai et al abdicating responsibility for Google's decisions.)
I suspect counsel does have an outsize effect on these decisions, but not because they have final authority. Rather, the risks they present are generally large, immediate, and quantifiable. People tend to prioritize even unlikely risks of that sort against the slow, ambiguous decay of destroying a reputation or failing to follow a changing industry.
If an open case saw a change of venue and then produced large damages, that's easily interpreted as a failure of the legal team to protect Google. If Google's retention rate or recruiting efficiency drop by some percentage, it might well cost more in lost expertise and recruiting work than a bad lawsuit would. But it wouldn't necessarily be discernible as a result of this decision, or even the sexual misconduct issue in general. I wouldn't expect the lawyers involved to be able to predict the size of that second impact and decide accordingly.
Certainly corporate lawyers sometimes enforce counterproductive decisions, but it's almost always down around the project level. For an issue Pichai is personally engaging with, it'd be pretty strange for a lawyer to go beyond saying "This is the safest legal option, but it may have other consequences. If you don't take it, here's the level of legal risk." Somebody else ought to be weighing the costs, and in an ideal world ethics, of making that decision.
Removing an arbitration clause only opens you up to the risk of a lawsuit if you've done something to open yourself up to the risk of a lawsuit. Google has fostered a culture that has tolerated inappropriate behavior in the workplace. The legal "risk" is a symptom of poor management.
Doesn’t really seem noteworthy to me.
This article is discussing a message directly from one of google's lawyers.
Pointing out that google's lawyers give the advice of google's lawyers is somewhat less than helpful, as far as observations go.
In this specific case the context is about the few specific instances where this policy will not apply. Given that nearly all these instances seem to involve ongoing litigation, I applied this reasoning.
Western civilization literally fought wars to get a set of balances in place around free speech, religion, anti-discrimination, and freedom to pursue "happiness".
We should be very very cautious about letting companies this amount of power, especially Google and Facebook, which have shown no issues terminating people's employment, and taking corporate actions that threaten democracy for their leaderships person benefits.
So it’s possible that Google made statements in pending cases that they would not have made had they known that it could become public.
As a result, they wouldn’t want to grandfather in these cases, and reasonably so (IMO).
It's also not about suits between individuals. It's employees seeking damages from Google, so there's no third party outside Google and the plaintiff who could be harmed by the switch. And the plaintiff shouldn't be harmed, because removing the requirement for arbitration wouldn't deny it to anyone who wanted it.
As far as "holding Google accountable for prior events under a new rule", that's pretty much what people were asking them to agree to in the first place. But even worse, Google's statement says all future claims - even about past events - will operate under the new rule. So Google is already going to be held accountable for past events under this rule, and this is just disadvantaging the people who already opened claims.
Of course, that's not really what's happening here with Google. What's happening is Google stated that the would not force people into arbitration, but they're still forcing people into arbitration.
But beyond that. It probably is not legally possible.
I wonder what legal standing a private company's "policy" has. Is it written into a contract of some sort, "if you are accused of sexual misconduct, we will follow policy X"? Are all those contracts now being updated?
Realistically, Google can handle this how they want, so I don't see why they can't change how they handle current claims (within reason, of course, I'm sure if your arbitration date is tomorrow, maybe it's bad to change that so suddenly). Of course, Google is going to want to minimize the public knowing about any of these claims, so they'll do what they can to keep it quiet.
I get the feeling that these policies have more value to marketing dept. than the legal dept. After all, there many things that constitute "sexual misconduct" that aren't illegal.
Just because it is called a policy does not mean it can be changed without notice and back dated.
How would you feel if your insurance company retroactively changed their policies on how active auto claims were handed ? Good thing it's not legal for them to do that.
In any case. Google can't always do what the want. The have to follow laws too.
You might be able to void a policy if both the plaintiff and defendant agreed.
I agree. That this is now just a dog and pony show.
Can you unpack who the "they" and the "people" are here a little bit?
Given the context, the phrase "already compelled to arbitration" sounds pretty fucking disgusting. It gave me nausea just reading it.
Perhaps Google's lawyers should take slightly more care over these legal missives and maybe wonder, given the wider situation, if it makes them or their employers look like complete and utter scumbags before hitting send.
As I see it, they have 3 options:
1. Give accusers the right to choose whether to relitigate claims currently in progress, effectively allowing them to judge whether to restart their case from scratch based on how well it's currently going and forcing individuals accused of misconduct to be investigated twice for the same offence.
2. Somehow unilaterally force all current cases to be moved to the courts, removing their secrecy, and exposing the details of previously confidential claims to the world without the consent of the alleged victim.
3. Do exactly what they're currently doing.
Do you see some option that I don't? Or are you advocating for options 1 or 2? I suspect both of them would be completely illegal.
edit: also it's fucking disgusting because it is Google shamelessly covering their asses to protect sexual abusers and a culture of sexual abuse and prevent real justice in a retroactive inquiry. that's completely straightforward.
I don't think you're even able to comprehend my position. Let's imagine manslaughter was legal (as it has been in the past, to some degree) and I would be here arguing that it should be illegal because you can't trust people not to kill each other merely because there's a court of public opinion. Would that be morally bankrupt, or just common sense?
Are you a space lizard?
[citation needed]
> meanwhile, market veneration is both economically illiterate and used as ideological cover for massive crimes.
What's economically illiterate is to expect market participants not to exploit the rules that are in place on moral grounds. You can make a moral case against an indefinite number of things done by private enterprise, but you can't maintain negative publicity for all of them. If you don't change the rules, companies only pay lip service, nothing more. That's not ideology, that's not "veneration", that's common sense.
I know companies generally follow market incentives. That doesn't mean those are good or should be excused as acceptable human behavior which is what your original comment serves to do.
No, where's the citation that this all this shaming in criticism causes things to become illegal? Google is always in the media spotlight, they're more likely to pay lip service than others.
> I know companies generally follow market incentives. That doesn't mean those are good or should be excused as acceptable human behavior which is what your original comment serves to do.
I'm not excusing anything, that's a really unfair allegation. I'm saying you are naive if you expect anything else out of the rules that are in place and that the rules need to be changed. Of course big companies yield to PR campaigns, that's a market incentive in and of itself. Yet, these arbitration clauses remain pervasive. Companies can just wait out some harassment suit that may never happen and then apologize and maybe change something.
The USA has had a civil war on this one.
Given Google reputation, they do not have much to lose.