
Google says its sex misconduct policy change doesn't apply to claims in progress - midza
https://www.buzzfeednews.com/article/daveyalba/google-lawyer-says-sexual-misconduct-policy-change-does-not
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docker_up
If Google is somehow reluctant to allow current claims to relitigate their
claims, does that mean that their plan going forward is to somehow restrict
the top of the funnel for claims, so that the ones that do get litigated
aren't as explosive or damaging as the current claims in progress?

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.

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esquivalience
It's very rare for new rules to apply retroactively — why is this surprising?

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](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)

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starbeast
>It's very rare for new rules to apply retroactively — why is this surprising?

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.

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fareesh
I suspect it boils down to one of the following?

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?

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save_ferris
Doesn't matter, listening to their lawyers doesn't make it right. Lawyers
exist to protect their clients from legal exposure, not to provide a moral
compass.

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.

~~~
fareesh
My assumption was that lawyers would have factored in the public relations
aspect of the decision too, and are confident they can win both in the
proceedings as well as in the court of public opinion.

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ergothus
That doesnt match the training, approach, nor skillset of the lawyers I know.
They advise on legal matters, the client decides based on the sum total.
Lawyers would explicitly avoid confusing legal opinions and business ones.

Then again, my lawyer friends aren't google lawyers.

~~~
Bartweiss
The only actual business decisions I've seen corporate lawyers make are "no,
that project is too legally risky to do". And even then the decision
technically belongs to someone else, it's just that no one involved was both
willing and able to contradict them. Anything beyond that pretty much reduces
to "here are the legal options available, and their likely legal
consequences."

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.

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InTheArena
We continue to allow corporations to become governments in and of themselves,
and to take actions that protect themselves, or push a set of goals that are
synonymous with the CEOs intentions, at the cost of individual liberties.
They've stretched this so that things that are clearly legal outside of work
hours, and in the privacy of ones own home is cause for termination, while
things that are clearly illegal in any context cannot be remedied under due
process.

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.

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gnicholas
Former lawyer here. My understanding is that the new rules do away with
mandatory confidentiality agreements.

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).

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swsieber
So... are people more angry at hearing this than if Google had never announced
an end to forced arbitration in the first place?

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IncRnd
There is a difference between the two.

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rustcharm
Well, of course. It’s only fair. You can’t change a rule then go back and hold
prior behaviors accountable according to the new rule. It’s just common
decency.

~~~
mbrumlow
I suspect your view on this matter will be ill taken.

But beyond that. It probably is not legally possible.

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dfxm12
_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.

~~~
mbrumlow
At my company I sign documents. That are tied to money. If the terms were to
change -- it would be s problem.

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.

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starbeast
>“Google announced a prospective policy change that applies going forward to
individual sex harassment and sex assault claims. This policy change does not
apply retroactively to claims already compelled to arbitration.”

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.

~~~
zeroname
Forced arbitration should simply be illegal. As long as it's legal, you can't
expect individual companies to not make use of it, that would be a competitive
disadvantage.

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jakelazaroff
I agree that forced arbitration should be illegal. But just because something
is legal doesn't mean we can't criticize a company for doing it!

~~~
zeroname
I didn't say you can't criticize it. I said you can't expect anything else.
Are you going to go down the list of companies from A to Z criticizing
everyone of them? Is that going to fix the problem?

