Opposition Brief — Google, Inc., et al., Petitioners v. John Doe, et al.

Supreme Court briefSep 8, 2021

Ask Donna

What actually matters in this document.

Text

No. 20-1744

In the Supreme Court of the United States

__________________

GOOGLE, INC., ALPHABET, INC., AND

ADECCO USA, INC.,

Petitioners,

JOHN DOE, DAVID GUDEMAN, AND PAOLA CORREA,

Respondents.

__________________

On Petition for Writ of Certiorari to the

Court of Appeal of California,

First Appellate District

__________________

BRIEF IN OPPOSITION

__________________

JAHAN SAGAFI

OUTTEN & GOLDEN LLP

1 California St., Ste 1250

San Francisco, CA 94104

jsagafi@outtengolden.com

(415) 638-8808

MICHAEL SCIMONE

JULIO SHARP-WASSERMAN

OUTTEN & GOLDEN LLP

685 3rd Ave, 25th Floor

New York, NY 10017

msccimone@outtengolden.com

jsharp-wasserman@

outtengolden.com

(212) 245-1000

September 8, 2021

CHRIS BAKER

Counsel of Record

DEBORAH SCHWARTZ

BAKER CURTIS & SCHWARTZ, P.C.

1 California St, Ste 1250

San Francisco, CA 94104

cbaker@bakerlp.com

(415) 433-1064

Counsel for Respondents

QUESTIONS PRESENTED

1. Can or should this Court, consistent with 28 U.S.C.

§ 1257, review an interlocutory decree by a state appellate court that reversed trial court decisions sustaining demurrers to complaints on federal preemption grounds?

2. According to Petitioners: “Where plaintiff has

sought and obtained relief under the National Labor

Relations Act, does the Act preempt plaintiff’s statelaw claims for the same conduct?”

PARTIES TO THE PROCEEDING

Petitioners Google and Alphabet (usually termed

“Google” here) are technology firms. Petitioner Adecco

is a staffing firm that provides temporary employees

to employers throughout California, including Google.

Petitioners are defendants in the trial court.

Respondent John Doe is a high-level Google supervisor. (Respondents’ Appendix (“App.”) 6-8). Respondent Paola Correa was a sales representative employed by both Google and Adecco who was fired by

both companies because, among other things, she disclosed what Petitioners termed “confidential information” to third parties. (App. 9-11). Respondent David Gudeman was fired because, according to Google,

he was unable to meet expectations. (App. 8-9). All

three Respondents – a supervisor and two former employees -- are outside the jurisdiction of the National

Labor Relations Act. (App. 8-11). Respondents are the

plaintiffs in the trial court.

Through California’s Private Attorney Generals

Act (PAGA), Cal. Labor Code § 2698 et seq., Respondents bring claims on behalf of the State of California.

Respondent Correa also brings claims, as an individual, against Adecco pursuant to California’s unfair

competition law.

iii

RULE 14.1(B)(III) STATEMENT

In addition to the proceedings listed in the petition,

the following proceedings are directly related to this

case.

John Doe, David Gudeman, and Paola Correa v.

Google Inc., Alphabet Inc., and Adecco USA, Inc., No.

CGC-16-556034 (Cal. Superior Ct.) (trial court proceedings following January 21, 2021 remittitur from

the Court of Appeal; pending).

Adecco USA, Inc. v. Superior Court of San Francisco,

No. A153470 (Cal. Ct. App.) (order denying Adecco’s

writ of mandate seeking coordination of Doe v. Google

with Moniz v. Adecco, a related case; entered on February 6, 2018).

Adecco Confidentiality Agreement Cases, Case No.

4939 (per assignment from Cal. Judicial Council) (order denying coordination of Doe v. Google and Adecco

v. Moniz, filed on January 4, 2018).

TABLE OF CONTENTS

QUESTIONS PRESENTED......................................... i

PARTIES TO THE PROCEEDING ............................ ii

RULE 14.1(b)(iii) STATEMENT ................................iii

TABLE OF AUTHORITIES ....................................... vi

STATEMENT OF JURISDICTION ............................ 1

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED .............. 1

INTRODUCTION ........................................................ 2

STATEMENT OF THE CASE .................................... 5

REASONS FOR DENYING THE WRIT .................. 15

THIS COURT NEITHER CAN NOR SHOULD

ASSERT JURISDICTION TO REVIEW THE

APPELLATE COURT’S INTERLOCUTORY

DECISION ...................................................... 15

II.

THE PETITION’S QUESTION PRESENTED

MISREPRESENTS THE PROCEEDINGS

BELOW ........................................................... 18

III. THE QUESTION PRESENTED HAS BEEN

LONG RESOLVED ......................................... 19

Under Garmon’s Local Interest

Exception, States Can and Do

Regulate Conduct Arguably and

Actually Prohibited by the Act ............ 19

NLRB Proceedings Are Not Dispositive

of the State’s Right to Regulate

Conduct That Separately Violates

State Law ............................................. 21

Gould Did Not Silently Eliminate

Garmon’s Exceptions ........................... 23

IV.

APPLICATION OF THE GARMON GUIDELINES IS CASE-SPECIFIC ........................... 24

There is No Conflict Between This

Case and Any Other Case .................... 24

Petitioners’ Disagreement With The

Application of the Garmon Guidelines

Does Not Justify Supreme Court

Review .................................................. 28

SUMMARY REVERSAL IS INAPPROPRIATE.... 31

APPENDIX

Appendix 1

Fifth Amended Complaint in the

Superior Court of California

County of San Francisco

(November 21, 2017) ............... App. 1

Appendix 2

Constitutional, Statutory, and

Regulatory Provisions

Involved .................................. App. 72

TABLE OF AUTHORITIES

Cases

Allied Chemical and Alkali Workers of America

v. Pittsburgh Plate Glass Co.,

404 U.S. 157 (1971) ............................................. 18

Belknap v. Hale,

463 U.S. 491 (1983) ......................11, 17, 21, 22, 26

Chaulk Services, Inc. v. Massachusetts

Commission Against Discrimination,

70 F.3d 1361 (1st Cir. 1995).......................... 25, 26

Cox Broadcasting Corp v. Cohn,

420 U.S. 469 (1975) ............................................. 15

Epic Systems Corp. v. Lewis,

138 S.Ct. 1612 (2018) .................................... 12, 28

Farmer v. Carpenters,

430 U.S. 290 (1977) ....................................... 21, 25

Fort Halifax Packing Co. v. Coyne,

482 U.S. 1 (1987) ................................................. 12

Garner v. Teamsters,

346 U.S. 485 (1953) ............................................ 24

Huffman v. Pursue, Ltd.,

420 U.S. 592 (1975) ............................................. 25

International Longshoremen’s Ass’n, AFL-CIO v.

Davis, 476 U.S. 380 (1986).............................. 4, 16

Jefferson v. City of Tarrant,

522 U.S. 75 (1997) ......................................... 15, 16

vii

Linn v. United Plant Guard Workers,

383 U.S. 53 (1966) ........................................ passim

Local 926, Intern. Union of Operating Engineers

v. Jones, 460 U.S. 669 (1983) ........................ 11, 24

Local No. 438 Const. and General Laborers

Union v. Curry, 371 U.S. 542 (1963) .................. 17

Malwarebytes, Inc. v. Enigma Software Group

U.S.A. LLC, 141 S.Ct. 13 (2020) ......................... 32

Mansfield, C. v. L.M. Ry Co. v. Swan,

111 U.S. 379 (1884) ............................................. 17

Merrill Dow Pharmaceuticals v. Thompson,

478 U.S. 804 (1986) ............................................. 16

Motor Coach Employees v. Lockridge,

403 U.S. 274 (1971) ....................................... 23, 24

Nash v. Florida Indus. Commission,

389 U.S. 235 (1967) ............................21, 22, 26, 31

NLRB v. Yeshiva University Faculty Ass’n,

444 U.S. 672 (1980) ............................................. 18

North Dakota State Bd. v. Snyder’s Drug Stores,

Inc., 414 U.S. 156 (1973) ..................................... 16

Parker v. Connors Steel Co.,

855 F.2d 1510 (11th Cir. 1988) ..................... 25, 26

Platt v. Jack Cooper Transport, Co., Inc.,

959 F.2d 91 (8th Cir. 1992) ........................... 25, 26

Pope v. Atlantic Coast Line R. Co.,

345 U.S. 379 (1953) ......................................... 1, 15

San Diego Building Trades v. Garmon,

359 U.S. 236 (1959) ...................................... passim

viii

Sarti v. Salt Creek Ltd.,

167 Cal.App.4th 1187 (2008) .............................. 17

Sears, Roebuck & Co. v. Carpenters,

436 U.S. 180 (1978) ...................................... passim

Teva Pharmaceuticals v. Superior Court,

217 Cal.App4th 96 (2013) ................................... 15

Three Affiliated Tribes v. Wold Engineering, P.C.,

467 U.S. 138 (1984) ............................................. 16

United Const. Workers v. Laburnum Const.

Corp., 347 U.S. 656 (1954) ............................ 20, 21

United Food & Commercial Workers v. Wal-Mart

Stores, 228 Md.App. 203 (Md.Ct.Sp.App.

2016), affirmed 453 Md. 482 (Md.Ct.App.

2017) .................................................................... 27

U.S. v. Enmons,

410 U.S. 396 (1973) ............................................. 20

Volentine v. Bechtel, Inc.,

27 F.Supp. 728, 733 (E.D. Tex. 1998) ................. 26

Wal-Mart Stores v. United Food & Commercial

Workers, 4 Cal.App.5th 194 (2016) ..................... 27

Williams v. Superior Court,

3 Cal.5th 531 (2017) .............................................. 8

Wisconsin Dept. of Industry v. Gould,

475 U.S. 282 (1986) ..............................4, 13, 23, 24

Constitution and Statutes

U.S. Const. Amend VIII ............................................. 1

U.S. Const. Amend XIV .............................................. 1

18 U.S.C. § 1833 ..................................................... 1, 2

28 U.S.C. § 1257 ............................................. 1, 15, 16

29 U.S.C. § 152(3) ............................................... 18, 31

29 U.S.C. § 157 ......................................................... 28

47 U.S.C. § 230 ......................................................... 32

Cal. Bus & Prof. Code § 16600 ................................... 2

Cal. Bus & Prof. Code §§ 16720-16728 ...................... 2

Cal. Labor Code §§ 200-202...................................... 30

Cal. Labor Code §§ 500-512...................................... 30

Cal. Labor Code §§ 1285-1310.................................. 30

Regulations

17 C.F.R. § 240.21F-17 ......................................... 2, 16

29 C.F.R. § 102.9......................................................... 8

Rules

Supreme Court Rule 14.1(a) .................................... 18

Other Authorities

Alstate Maintenance LLC¸ 367 N.L.R.B. No 68,

2019 WL 183862 (2019) ................................ 28, 29

Motor City Pawn Brokers Inc., 369 NLRB No.

132, 2020 WL 4339249 (2020) ............................ 28

STATEMENT OF JURISDICTION

An appellate decision overruling a demurrer is not

a final judgment within the meaning of 28 U.S.C.

§ 1257. Pope v. Atlantic Coast Line R. Co., 345 U.S.

379, 382 (1953). No exception to this general rule applies. The Court lacks jurisdiction to review the decision below.

CONSTITUTIONAL, STATUTORY,

AND REGULATORY PROVISIONS INVOLVED

In addition to those identified in the petition, the

case also involves these provisions:

Federal Provisions

The Eighth Amendment of the United States Constitution states: “Excessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. Amend VIII.

The Fourteenth Amendment to the United States

Constitution provides “nor shall any State deprive any

person of life, liberty, or property, without due process

of law. . . .” U.S. Const. Amend XIV, § 1. The full text

of section 1 is reproduced at App. 72.

Section 1833 of the Defend Trade Secrets Act requires that employers provide a “notice of immunity”

in any contract, agreement or policy document advising employees of their whistleblower rights. 18 U.S.C.

§ 1833. The text of this provision is reproduced at App.

72-74.

The Securities and Exchange Commission has

promulgated a rule, 17 C.F.R. § 240.21F-17, that prohibits conduct, including the use of confidentiality

agreements, that impede individuals from communicating with the SEC. The text of this regulation is reproduced at App. 75.

State Provisions

California Business & Professions Code § 16600

states: “Except as provided in this chapter, every contract by which anyone is restrained from engaging in

a lawful profession, trade, or business of any kind is to

that extent void.” Cal. Bus & Prof Code § 16600.

The California Cartwright Act prohibits restraints on competition. Cal. Bus & Prof. Code

§§ 16720-16728, The text of the relevant provisions

of this statute are reproduced at App. 76-82.

INTRODUCTION

The Court does not have jurisdiction to grant the

petition. Rather, the petition seeks review of an interlocutory decision, as to one federal issue, by an intermediate appellate court. All the federal issues in this

case may well become the subject of further review as

the case progresses. Even the federal issue raised by

the petition—National Labor Relations Act (NLRA)

preemption—is subject to further review by the courts

below because the petition concerns an interlocutory

decision based on the pleadings. (Petitioners Appendix

(“Pet.App.”) 3a, 11a).

The petition’s “Question Presented” also limits

the impact of this Court’s review on the underlying litigation. The Question asks whether a plaintiff’s state

remedies turn on the receipt of NLRA remedies premised on the same conduct. This misstates the proceedings below because much of the conduct is different;

the state claims concern additional acts and defendants that are unrelated to the NLRA proceedings.

Even if this Court found for Petitioners on the Question Presented, the underlying litigation would proceed on the unrelated or unaffected claims. Thus, even

assuming the Question Presented might one day merit

review, now is not the time.

And such an assumption is wrong in any event.

The Question does not ever merit review because the

answer is already well-settled. Under San Diego

Building Trades v. Garmon, 359 U.S. 236 (1959), the

same conduct, illegal for different reasons, can give

rise to remedies under the NLRA and state law. Congress passed the NLRA to protect rank-and-file employees who sought to engage (or not) in collective action, and to otherwise govern the relationship between

those employees, unions, and employers. The Act was

not intended to preempt state laws, passed as part of

the state’s police power, applicable to all employees—

union and non-union, current and former, rank-andfile and managerial—that establish minimum employment standards, protect individual employee rights,

and that concern deeply-rooted state interests.

By way of analogy, a union leader who murders

an employee because she refuses to join the union commits an unfair labor practice. Upon the filing of a

charge, the NLRB can issue a complaint and enter a

settlement that requires the union to post a notice

stating it will stop murdering recalcitrant employees

in violation of the Act. For the same conduct, the state

can charge the union and union leader with murder

and seek, as applicable, fines, prison time or capital

punishment (state penalties “piled on top” of the

NLRB notice remedy). The employee’s widow also can

file a wrongful death action seeking compensation and

punitive damages (still more state remedies). The

NLRB proceedings and settlement have no bearing on

the State’s prosecution and the widow’s litigation under state law.

This Court has found that the Garmon guidelines,

including its local interest exception, permit state law

regulation, remedies, and penalties for a continuum of

conduct that is also arguably or actually prohibited by

the Act. This conduct ranges from violence to trespass, to personal and economic torts, to contracts, and

more. The Court did not abandon or silently reverse

this law in Wisconsin Dept. of Industry v. Gould, 475

U.S. 282 (1986), as Petitioners contend. Gould narrowly concluded that a state cannot enforce the NLRA

itself (as opposed to state laws) through a spending

statute debarring violators of the NLRA. Gould did

not erase Garmon’s defined boundaries and eviscerate

the local interest exception. See, e.g., International

Longshoremen’s Ass’n, AFL-CIO v. Davis, 476 U.S.

380, 391 (1986).

The appellate court’s interlocutory decision was

an unexceptional application of the well-established

Garmon guidelines to a unique set of facts. The decision was also entirely correct.

The Court should deny the petition.

STATEMENT OF THE CASE

1. The operative complaint in this case (App. 1-71)

states twenty-three causes of action, twenty-two of

which are currently proceeding in the trial court. 1

Broadly, the complaint alleges that Google, Alphabet,

and Adecco maintain confidentiality policies, practices, and non-disclosure agreements (“NDAs”) – applicable to all their current and former employees (including supervisors and managers) – that unlawfully

restrict the right to compete, whistle blow, and speak

in violation of California law. (App. 3-5). The complaint identifies, for illustrative purposes, specific

agreements, policies and practices as examples of

these state law violations.

The competition claims are entirely ignored by the

petition. These claims allege that Petitioners’ overbroad NDAs and other policies constitute illegal restraints of trade. (App. 40-43, 64-65). Among other

things, the NDAs prevent employees from using general skills, knowledge, acquaintances, experience,

general business practices, and information readily

available to competitors, to compete with Petitioners

or find other work. (App. 40-41). Adecco’s NDAs and

policies also prohibit its employees from working for

its clients without Adecco’s permission – an ordinary

non-compete illegal under California law. (App. 33).

The fifth amended complaint is the same in all material respects

as the third and fourth amended complaints that were the subject

of the decision below. See Pet. App. 90a. The parties have agreed

to treat the fifth amended complaint as the operative one in the

trial court.

The whistleblowing claims allege that Petitioners’

NDAs, policies, and practices prohibit whistleblowing

about violations of federal and state law. Petitioners

prohibit employees from disclosing information about

illegal conduct to government agencies (including the

SEC and the Department of Justice) (App. 15, 58), outside attorneys for purposes of representation or investigation (App. 43-44), and within their own organizations. (App. 47). Indeed, Google expressly instructs

employees to avoid communications that conclude, or

appear to conclude, that Google has acted illegally or

violated the law. (App. 24-25).

The freedom of speech claims concern California’s

prohibition on agreements, policies, or practices that

restrict employee speech, including those that “seek to

control the nonwork aspects of their employees lives.”

(Pet. App. 14a). Google, for example, places a prior restraint on employees who might write a novel about

Silicon Valley. (App. 23). Petitioners also prohibit employees from sharing information about their working

conditions and wages with their spouses or parents

(App. 3-4, 60), posting their opinions about Google on

the internet (App. 21), revealing the identities of their

co-workers, or disclosing their disagreements or arguments with others. (App. 35).

A number of the state causes of action incorporate

federal law by reference. Respondents allege that Petitioners’ NDAs, policies, and practices violate federal

law because – among other things – they prohibit the

disclosure of information to the SEC, in violation of

SEC Rule 21F-17, and do not include the notice of immunity required by the Defend Trade Secrets Act.

(App. 15, 44-45, 64).

Respondents allege that Petitioners’ violations of

these laws are ongoing. (App. 30-31, 66-68). Google’s

training programs, for example, continue to prohibit

employees from using words like “marketshare” or

“dominance” that suggest Google is a monopoly. After

the appellate court issued the decision below, Respondents learned that Google’s NDAs and other policies also prohibit its YouTube “content moderators”

from discussing their working conditions, even with

their own therapists, for their own mental health reasons. 2 These allegations and others are, or will be, addressed in the current trial court proceedings.

As remedies, the Complaint seeks penalties under

PAGA and a public injunction. (App. 70). The case is

not, as Petitioners contend, just about penalties for

conduct already remedied.

2. Since the appeal, Google has answered Respondents’ complaint. Petitioners’ answers generally

deny the allegations and assert numerous defenses,

including ones based on federal law: i.e., that Respondents’ claims are barred, either in whole or in

part, by Garmon, and that PAGA, both on its face and

as applied, violates the Eighth and Fourteenth

Amendments to the U.S. Constitution.

3. On May 17, 2016, prior to filing the initial state

court complaint, Doe filed a PAGA notice with California’s Labor Workforce & Development Agency

The working conditions of content moderators include the regular review of YouTube videos featuring children being raped and

animals tortured to determine compliance with Google’s guidelines. These employees often suffer from depression, anxiety, and

other disorders.

(“LWDA”). 3 The PAGA notice alleged that two Google

policies, along with its standard NDA, violated specific

provisions of the California Labor Code. Subsequent

PAGA notices added allegations against Google, Alphabet, and Adecco based on additional policies, training programs, practices, and contracts.

On the same day that Doe filed his first PAGA notice, he also filed a ULP charge with the National Labor Relations Board against Google and Nest (an Alphabet subsidiary). 4 Anyone, including a CEO or

member of the public, can file a ULP charge. 29 C.F.R.

§ 102.9. Unlike the PAGA notices and state complaint,

the ULP charge made reference to only two Google policies. It was also limited to matters within the Board’s

jurisdiction. It stated in pertinent part: “Employers

[Google and Nest] maintain a data classification policy

and code of conduct that prohibits the exercise of section 7 rights.” (Respondents’ 5.09.19 Appellate Appendix, p. 319). To Respondents’ knowledge, no ULP

charge has ever been filed against Adecco with respect

to any of its policies or NDAs.

About four months after Doe filed his state complaint, an NLRB regional director filed a complaint

against Google and Nest. In contrast to the limited

allegations and two policies in Doe’s ULP charge, the

NLRB complaint asserted that Google’s NDA and

many of its policies violated sections 7 and 8 of the Act.

Unlike the state complaint (which alleges ongoing violations based on more than just Google’s policies), the

A PAGA notice to the LWDA is a required precursor to bringing

a PAGA claim. Williams v. Superior Court, 3 Cal.5th 531, 545

(2017).

Doe filed no charge against Alphabet.

NLRB complaint was limited to the Google NDA and

policies in effect between September 1, 2015 and November 1, 2016. (Respondents’ Appendix, p. 183 ¶ 6).

On September 28, 2018, after the trial court had

sustained the demurrers to the state complaint, the

regional director – referencing changes to the Board’s

interpretation of the Act – dismissed the majority of

the allegations in the NLRB’s complaint as not violating the Act. The dismissed allegations included all of

the allegations arising from Google’s NDA, and many

of the allegations arising from Google’s policies. (Respondents’ 5.9.2019 Request for Judicial Notice

(“RJN”), Ex. 1).

Respondents appealed the trial court’s demurrer

orders and filed their opening brief with the state appellate court. In September 2019, after Respondents

had filed their opening brief, and more than two years

after the trial court sustained the demurrers, the

NLRB regional director, Google, and Nest entered into

an informal settlement of the NLRB complaint’s remaining allegations. The informal settlement, by its

terms, resolved only what remained of the NLRB complaint: allegations concerning specific language in specific Google policies for the time period between September 2015 and November 2016. The informal settlement stated: “This Agreement settles only the allegations in the above-captioned case(s) and does not

settle any other cases or matters.” (Pet. App. 172a

(emphasis added)).

Doe objected to the informal settlement, arguing,

among other things, that it was unenforceable because

it sought to remedy conduct outside the Board’s limited jurisdiction (e.g., conduct unrelated to protected

concerted activity and conduct affecting supervisors

and former employees beyond the Act’s jurisdiction).

(Respondents’ 2.3.2020 RJN, Ex. 3). The regional director dismissed the objection, explaining “the Settlement Agreement covers only the alleged violations of

the Act and does not seek to remedy or cover other

matters not before the Board.” (Pet.App. 165a). Doe

appealed this decision to the Board’s General Counsel

(Respondents’ 2.3.2020 RJN, Ex. 4), who rejected the

appeal for the same reasons. (Id., Ex. 5).

As part of the informal settlement, Google agreed

to post a notice advising employees of their section 7

rights under federal law and stating that Google

would not violate those federal rights. There is no evidence that Google has remedied any state law violations. Respondents contend Google, Alphabet and

Adecco continue to promulgate and enforce NDAs, policies, and practices that violate state law. There is no

NLRB settlement of any sort with Adecco, or with Alphabet directly.

In their answering briefs to the state appellate

court, Petitioners primarily argued that the trial

court’s demurrer orders should be sustained because

of the post-appeal informal settlement with the regional director. Also in their briefs, Petitioners did not

dispute that the trial court erred in concluding the Act

applied to claims concerning supervisors and former

employees outside the Act’s jurisdiction. (See Petitioners’ 10.15.2019 and 10.21.2019 Appellate Briefs).

4. In its opinion, the California Court of Appeal

unanimously concluded the trial court erred in sustaining the demurrers with respect to Respondents’

state law competition claims, whistleblower claims

with respect to matters unrelated to employment

terms, and the majority of their freedom of speech

claims (e.g., the writing of creative fiction). (Pet.App.

16a-17a (majority opinion), 40a-41a (concurring/dissenting opinion). The appellate court found these

claims, on their face, concerned conduct not even arguably prohibited by the Act. (Pet.App. 16a, 40a).

However, because some of the conduct alleged in

the complaint was arguably prohibited by the Act, the

appellate court considered the local interest exception

to Garmon preemption. The majority concluded the

exception applied under three different analyses.

First, the majority conducted a balanced inquiry

into the federal and state interests at stake, taking

into account the risk of interference with the NLRB’s

jurisdiction. (Pet App. 12a-22a). Second, the majority

conducted the critical inquiry set forth in Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180 (1978) as to

whether the controversy presented to the NLRB was

identical to the controversy presented to the state

court. (Pet.App. 22a-25a). Third, the majority considered whether the claims were preempted under the

concurring/dissenting opinion’s “crucial element” test.

(Pet.App. 25a-30a). 5 Under each analysis, the appellate court found the claims not preempted under the

Garmon guidelines.

As for the federal interests, the majority explained the Act’s purpose, which includes the exercise

The crucial element test posited by the concurring/dissenting

opinion is premised on its understanding that Local 926, Intern.

Union of Operating Engineers v. Jones, 460 U.S. 669 (1983) modified Sears. (Pet.App. 52a). However, following Jones, this Court

reaffirmed Sears’ identical controversy test in Belknap, supra,

463 U.S. at 510. Petitioners, appropriately, do not ask this Court

to resolve any perceived tension between Sears and Jones. (Pet.

p. 22 n. 7).

by workers of their full freedom of association for the

purpose of mutual aid and protection. The majority

reasoned the Act’s focus was on nonexempt employees

(those within its jurisdiction) joining together for their

mutual benefit. (Pet. App. 13a). The majority also observed that “the NLRA ‘is aimed at safeguard[ing],

first and foremost, workers right to join unions and to

engage in collective bargaining.” (Pet.App. 19a (citing

Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018)).

As for the state’s interests, the majority explained

that the state laws at issue in Respondents’ complaint

apply to all employees (including those outside the jurisdiction of the Act) as individuals. (Pet. App. 13a14a). “The state statutes plaintiffs seek to enforce [include] statutes that preserve the freedom of all employees to practice their profession or trade, to report

wage-and-hour violations or unsafe working conditions to government agencies, and to speak as they

choose about their work lives.” (Pet. App. 19a (citations omitted, emphasis added). In assessing the

state’s interests, the majority also observed that “preemption should not be lightly inferred in this area,

since establishment of labor standards falls within the

traditional police power of the State.” (Pet.App. 18a

(citing Fort Halifax Packing Co. v. Coyne, 482 U.S. 1,

20-21 (1987)).

Google argued that – notwithstanding the state’s

interests – the local interest exception did not apply

because of the ULP charge and the informal settlement. Thus, it argued, Respondents’ PAGA claims

against Google, if allowed to continue, would interfere

with the Board’s jurisdiction.

The majority rejected Google’s argument for two

reasons. First, there was no likelihood of a state court

reaching a different finding on liability than the regional director because the regional director made no

liability finding. (Pet.App. 21a). Besides, the local interest exception can permit different factual findings

with respect to conduct that gives rise to both an unfair labor practice and a state law violation. (Pet.App.

31a-32a (citing Linn v. United Plant Guard Workers,

383 U.S. 53 (1966)). Second, there was no chance the

state complaint would generate duplicative NLRB

remedies because the state claims required proof of

state law violations, not NLRA violations. (Pet.App.

22a). The state sanction in Gould, by contrast, required an NLRB decision concluding the employer had

violated the Act.

Because the majority found no preemption as to

Google (where there was a ULP charge, a complaint,

and an informal settlement), it also found no preemption as to Adecco (where there were no NLRB proceedings at all). The majority simply noted that “Adecco

admits there is no meaningful difference between [the]

claims against Google and those against Adecco.” 6

(Pet.App. 7a). Because there was no need to do so, the

majority also did not address Garmon’s effect on the

state claims to the extent they concerned employees,

like Respondents, outside the Act’s jurisdiction.

5. Justice Brown, in her concurring and dissenting opinion, parted from the majority only with respect

to the claims against Google as they related to whistleblowing and speech about wages and working

Respondents argued below that, even if the claims as to Google

were preempted by the NLRB proceedings and informal settlement, the claims as to Adecco were not. (Respondents’ 2.03.2020

Reply Brief pp. 29-30; Respondents’ 11.10.2020 Opposition Brief

to California Supreme Court, p. 24).

conditions. Her dissent as to this subset of claims was

based on this understanding of the facts: (1) Doe filed

a ULP charge against Google and Alphabet with the

Board alleging Google’s confidentiality policies violated the Act; (2) The regional director issued a complaint based on the charge; (3) Google agreed to withdraw those portions of its confidentiality policies on

which the regional director based her complaint; and

(4) the state court complaint challenges the same policies. (Pet App. 39a). Justice Brown found that “in

these circumstances, I conclude that some of plaintiffs’

claims pose a substantial risk of interference with the

NLRB’s jurisdiction.” (Id. (emphasis added)).

Justice Brown based this conclusion on her understanding – disputed by Respondents and the record –

that Google had remedied through the informal settlement all the relevant violations against Google alleged

in the state complaint, and that Respondents should

not be able to seek PAGA penalties arising from conduct the Board had remedied. Justice Brown, like the

majority, did not separately address any of the claims

against Adecco (including those for injunctive relief),

nor whether Garmon preempted claims against

Google or Adecco arising from state law violations as

to employees outside the Act’s jurisdiction.

6. Petitioners requested review by the California

Supreme Court, which was denied. On January 21,

2021, the appellate court issued a remittitur to the

trial court, where the case is currently proceeding. At

the trial court’s direction, the parties have since

lodged with the court a list of Google agreements, policies, and other documents at issue in the case. The

documents identified (which Respondents contend are

incomplete) span a six-year time frame, from August

2015 to the present.

From a pleadings, discovery, and trial perspective, the case is in its infancy. No trial date is set.

REASONS FOR DENYING THE WRIT

THIS COURT NEITHER CAN NOR

SHOULD ASSERT JURISDICTION TO

REVIEW THE APPELLATE COURT’S INTERLOCUTORY DECISION.

Unless an exception applies, an appellate decision

overruling a demurrer is not a final judgment. 28

U.S.C. § 1257. Pope, supra, 345 U.S. at 382. It is not

an effective determination of the litigation, and it is

not the final word of a final state court. Jefferson v.

City of Tarrant, 522 U.S. 75, 81 (1997).

Exceptions to this final judgment rule can arise in

situations where a state’s highest court has finally determined the federal issue in the case, but there are

still proceedings to be had in the lower courts. Cox

Broadcasting Corp v. Cohn, 420 U.S. 469, 478 (1975).

Normally, these lower court proceedings will not require resolution of yet more federal issues. Id.

Here, California’s highest court has not finally determined the Garmon issue. Rather, it declined to review an interlocutory decision overruling demurrers to

a complaint based on California’s permissive pleading

standard. See Teva Pharmaceuticals v. Superior

Court, 217 Cal.App4th 96, 110 (2013). The petition

complains of California’s pleading standards – arguing it “makes preemption easily avoidable by all but

the most inept of complaint-drafters” (Pet. p. 20) – but

California’s pleading standards are of no interest to

this Court. Garmon preemption does not turn on the

pleadings. It is a defense that must be established

with evidence. Davis, supra, 476 U.S. at 398. Nothing precludes the California Supreme Court (or this

Court) from considering the preemption defense

through subsequent proceedings when there is a developed record. 7

These subsequent proceedings may well require

review of federal issues in addition to Garmon

preemption: e.g., whether Petitioners’ agreements and

policies violate SEC Rule 21F-17 and the Defend

Trade Secrets Act (and thus also violate state law), 8

and whether Respondents’ PAGA claims, and PAGA

itself, violate the Eighth and Fourteenth Amendments. It is a waste of this Court’s resources, and contrary to 28 U.S.C. § 1257, to consider the federal issues

piecemeal. E.g., North Dakota State Bd. v. Snyder’s

Drug Stores, Inc., 414 U.S. 156, 159 (1973). “[W]here

the remaining litigation may raise federal questions

that may later come here . . . to allow review of an intermediate adjudication would offend the decisive objection to fragmentary reviews.” Id.

In the face of these facts and applicable law, Petitioners contend this Court has jurisdiction based on

The analysis under 28 U.S.C. § 1257(a) does not change even if

the California courts, applying state law, treat the decision below

as “the law of the case.” Jefferson, supra, 522 U.S. at 76.

A federal issue arises when the vindication of a right under state

law necessarily turns on the construction of federal law. Merrill

Dow Pharmaceuticals v. Thompson, 478 U.S. 804, 809 (1986).

This Court also has jurisdiction to review a state court’s interpretation of state law that has been influenced by an accompanying

interpretation of federal law. Three Affiliated Tribes v. Wold Engineering, P.C., 467 U.S. 138, 152 (1984).

three cases that, unlike this one, involved unions and

labor disputes. None justify a departure from the regular final judgment rule. Belknap v. Hale, 463 U.S.

491, 498 (1983), Davis, supra, 476 U.S. at 384, and Local No. 438 Const. and General Laborers Union v.

Curry, 371 U.S. 542, 543-45 (1963), each involved

binding state court decisions that finally resolved the

issue of Garmon preemption, the only federal question

at issue, after the consideration of evidence, and

where reversal would terminate the proceedings below. Here, Petitioners seek review of an initial state

court decision, based on the pleadings (not the evidence), that has no horizontal (or binding) stare decisis

effect. E.g., Sarti v. Salt Creek Ltd., 167 Cal.App.4th

1187, 1193 (2008). The case also involves numerous

(not one) federal issues, and a reversal based on the

Question Presented would not terminate the proceedings below.

An interim judicial opinion – even if erroneous

(and this one was not) – that affects only the parties

involved, that arises from an unlikely-to-be-repeated

fact pattern, and that binds no state supreme, appellate, or federal court poses no realistic risk of seriously

eroding federal policy. The fact that the decision concerns a court’s jurisdiction is not dispositive of the final judgment inquiry. State and federal courts routinely face challenges to their jurisdiction based on

preemption, due process, Article III standing, and otherwise. A court’s conclusion that it has jurisdiction,

even if erroneous, is not a final judgment. It is more

often the very first judgment. E.g., Mansfield, C. v.

L.M. Ry Co. v. Swan, 111 U.S. 379, 382 (1884).

II.

THE

PETITION’S

QUESTION PRESENTED MISREPRESENTS THE PROCEEDINGS BELOW

The petition’s Question Presented is: “Where

plaintiff has sought and obtained relief under the National Labor Relations Act, does the Act preempt

plaintiff’s state law claims for penalties for the same

conduct.” The Question misstates the facts, as well as

the past and current proceedings. 9

The NLRB proceedings and the state law claims

do not concern all the same conduct. Plaintiff John

Doe sought relief under the NLRA with respect to only

two Google policies, and only as they related to interference with section 7 rights (i.e., the right of current

rank-and-file employees to engage in protected concerted activity). No NLRA relief was sought by any

other plaintiff. No NLRA relief was sought against

Adecco or Alphabet. No NLRA relief was or could be

sought with respect to claims related to supervisors

and former employees who, like Respondents, are outside the jurisdiction of the Act. 29 U.S.C. § 152(3); Allied Chemical and Alkali Workers of America v. Pittsburgh Plate Glass Co., 404 U.S. 157, 172 (1971) (former employee retirees – those whose work had ceased

with no expectation of return – not employees under

the Act); NLRB v. Yeshiva University Faculty Ass’n,

444 U.S. 672, 681-83 (1980) (managers and supervisors outside the jurisdiction of the Act). In other

words, Respondents seek PAGA penalties and a public injunction for conduct beyond the limited policies

alleged in the ULP charge, beyond the limited policies

This Court only considers questions set out in the petition or

fairly included therein. Supreme Court Rule 14.1(a).

alleged in the NLRB complaint (both before and after

the partial dismissal), and beyond the limited policy

language for the limited period of time purportedly addressed through the informal settlement.

Thus, if this Court were to grant review of the

Question Presented and rule in Respondents’ favor on

the Question, the trial court proceedings would continue unabated. The case would proceed in its entirety

against Adecco and Alphabet (because there were no

NLRB proceedings as to them), in its entirety with respect to the claims relating to supervisors and former

employees (because they are beyond the Act’s jurisdiction), and in its entirely with respect to conduct not

alleged in the ULP charge or encompassed by the informal settlement. Not a single cause of action would

be entirely preempted.

III.

THE QUESTION PRESENTED HAS BEEN

LONG RESOLVED

Under Garmon’s Local Interest Exception, States Can and Do Regulate

Conduct Arguably and Actually Prohibited by the Act.

It is well-settled that a party can seek state remedies in state courts for conduct that is also arguably

or actually prohibited by the NLRA. “[T]he history of

the labor pre-emption doctrine in this Court does not

support an approach which sweeps away state-court

jurisdiction over conduct traditionally subject to state

regulation without a careful consideration of the relative impact of such a jurisdiction bar on the various

interests affected.” Sears, Roebuck & Co. v. San Diego

County Dist. Council of Carpenters, 436 U.S. 180, 188

(1978).

Thus, and depending on the circumstances, a

state may enforce its own laws through punitive and

corrective measures, even when those laws regulate

conduct arguably or actually prohibited by the Act.

E.g., U.S. v. Enmons, 410 U.S. 396, 398 (1973) (“Acts

of violence occurring during a lawful strike and resulting in damage to persons or property are undoubtedly

punishable under State law.”). That is the whole point

of Garmon’s exceptions, which are baked into Garmon

itself. Garmon, supra, 359 U.S. at 247. “[D]ue regard

for the presuppositions of our embracing federal system . . . has required us to not find withdrawal from

the States of power to regulate . . . . where the regulated conduct touches interests so deeply rooted in local feeling and responsibility that, in the absence of

compelling congressional direction, we could not infer

that Congress had deprived the States of the power to

act.” Id. at 244 (emphasis added, citations omitted).

“[W]hen the Board and state law frown upon [the

same conduct], albeit for different reasons, it may be

expected the injured party will seek both administrative and judicial relief.” Linn, supra, 383 U.S. at 66.

As explained by Senator Taft, state and NLRA remedies for certain conduct, unlawful for different reasons, can and should co-exist. “There is no reason in

the world why there should not be two remedies for an

act of that kind.” United Const. Workers v. Laburnum

Const. Corp., 347 U.S. 656, 668-69 (1954). The Act

gives no ground “for concluding that existing criminal

penalties or liabilities for tortious conduct have been

eliminated.” Linn, supra, 383 U.S. at 662 (citations

omitted).

Through repeated application of the Garmon

guidelines, this Court has concluded that conduct

which is actually or arguably prohibited by the Act can

also give rise to state law claims and remedies (including public and punitive remedies) for, among other

things: (1) violence or threats of violence (Laburnum,

supra, 347 U.S. at 668-69; (2) trespass (Sears, supra,

436 U.S. at 188); (3) defamation (Linn, supra, 383 U.S.

at 66); (4) infliction of emotional distress (Farmer v.

Carpenters, 430 U.S. 290 (1977)); (5) employment misrepresentation (Belknap, supra, 463 U.S. 491; and

(6) breach of contract (Belknap).

NLRB Proceedings Are Not Dispositive of the State’s Right to Regulate

Conduct That Separately Violates

State Law.

In light of this Court’s precedents, the existence

or outcome of a ULP charge or NLRB settlement is not

dispositive of any analysis under the Garmon guidelines. Otherwise, the question of preemption would be

placed in the hands, not of Congress or the courts, but

of the person who decides to file a ULP charge in the

first place.

Of course, if preemption depends on whether

someone files a ULP charge, then many persons will

not file a charge to avoid the loss of state remedies.

This “has a direct tendency to frustrate the purpose of

Congress to leave people free to make charges of unfair labor practices to the Board.” E.g., Nash v. Florida Indus. Commission, 389 U.S. 235, 239 (1967). It

is also contrary to Linn, which expects a party to seek

both NLRA and state law remedies when the same

conduct is unlawful for different reasons.

For example, in Nash, Florida withheld unemployment insurance – a state remedy – from employees who also filed a ULP charge claiming their termination arose from a labor dispute. Even though the

same conduct was at issue in both the ULP charge and

the unemployment proceeding, the Court struck down

the Florida law as interfering with the Act because it

deterred the filing of charges. Id. at 239. Thus, it violated the NLRA to withhold a state remedy for conduct for which there was also an NLRA remedy. Id. at

239.

Similarly, Linn found a state libel action could

proceed against the union despite both a ULP charge

alleging the libel was prohibited by the Act and a regional director’s finding that the union did not commit

the libel. These facts, including that the state court

might make factual findings different than the NLRB

with respect to the union’s responsibility, did not matter under Garmon. “Judicial condemnation of the alleged attack on Linn’s character would reflect no judgment upon the objectives of the union. It would not

interfere with the Board’s jurisdiction over the merits

of the labor controversy.” Id. at 64.

Finally, Belknap, supra, 463 U.S. 491, determined

that state breach of contract and misrepresentation

claims for employer misconduct could proceed under

the Garmon guidelines, despite a ULP charge alleging

the same conduct was prohibited by the Act, an NLRB

complaint based on that charge, and an NLRB settlement requiring the employer to breach the contracts

and defy the representations in violation of state law.

Id. at 495-498.

In none of these cases did the existence of a ULP

charge, NLRB complaint, or NLRB settlement justify

the preemption of state claims or the pursuit of state

remedies. The present case is no different. It establishes no new law. It is just another intermediate appellate court ruling that analyzes a unique set of facts

against the pre-existing Garmon guidelines.

Gould Did Not Silently Eliminate

Garmon’s Exceptions

The petition’s Question Presented depends entirely on an analysis of Wisconsin Department of Industry v. Gould, 475 U.S. 282 (1986) that contradicts

the cases upon which Gould is based, including Garmon itself.

Gould did not involve the state’s police power. Rather, it was a direct challenge to a state spending statute that debarred certain repeat violators of the NLRA

from doing business with the state. Id. at 284-85. The

state in Gould conceded the purpose of the debarment

statute was to deter violations of the NLRA, as opposed to violations of distinct state laws. Id. at 228.

Because “[t]he manifest purpose and inevitable effect

of the debarment rule is to enforce the requirements

of the NLRA,” it was preempted by the NLRA. Id. at

291. Gould did not discuss the local interest exception

to Garmon preemption because no local interest was

asserted. 10

The two cases cherry-picked by the petition to support its expansive reading of Gould do not help Petitioners. Motor Coach

Employees v. Lockridge, 403 U.S. 274, 296 (1971) involved a state

Here, and in contrast to Gould, Respondents do

not seek to enforce the NLRA through a spending statute. Respondents seek to enforce state laws, enacted

pursuant to the state’s police power, establishing minimum employment standards applicable to all employees, that require no determination as to whether Petitioners violated the Act.

IV.

APPLICATION OF THE GARMON GUIDELINES IS CASE-SPECIFIC

There is No Conflict Between This

Case and Any Other Case

The Garmon guidelines should not be applied in a

“literal, mechanical fashion.” Jones, supra, 460 U.S. at

676; Sears, supra, 436 U.S. at 188. The “inflexible

application of the doctrine is to be avoided, especially

when the State has a substantial interest in regulation of the conduct at issue and the State’s interest is

one that does not threaten undue interference with

the federal regulatory scheme.” Sears, supra, 436 U.S.

at 188. Applying the Garmon guidelines requires “a

balanced inquiry into such factors as the nature of the

federal and state interests in regulation and the

court action that turned on the proper interpretation of a collective bargaining agreement, “a matter to which . . . federal concern

is pervasive and regulation complex.” While finding the claim

preempted, Lockridge expressly acknowledged the continued vitality of the exceptions to the Garmon guidelines. Garner v.

Teamsters, 346 U.S. 485 (1953) was a pre-Garmon case involving

a state’s attempt to prohibit an unfair labor practice through enforcement of its “mini-NLRA.” Id. at 487 -489.

potential for interference with federal regulation.”

E.g. Farmer, supra, 430 U.S. at 300.

The petition suggests that “it is not for the California Court of Appeal” to conduct this balanced inquiry. (Pet. p. 10). But it is. State judges are bound

by the United States constitution, laws, and treaties

just like federal judges. Huffman v. Pursue, Ltd., 420

U.S. 592, 611 (1975). This Court does not assume that

state judges are unfaithful to, or incapable of complying with, their constitutional responsibilities. Id.

All courts – state and federal – must apply the

Garmon guidelines to the specific case before them.

This means that different fact patterns, involving different laws, result in different outcomes. What Petitioners describe as a “direct conflict” between this case

and three federal circuit court cases is nothing of the

sort. Each case involves an application of the well-established Garmon guidelines to different facts and

laws.

In Parker v. Connors Steel Co., 855 F.2d 1510

(11th Cir. 1988), union employees sued both their employer and their union for fraud and breach of the duty

of fair representation. In Platt v. Jack Cooper

Transport, Co., Inc., 959 F.2d 91 (8th Cir. 1992), a union employee filed a grievance under the collective

bargaining agreement (and lost), filed an unfair labor

practice with the NLRB (and lost), then proceeded to

state court alleging wrongful termination. In Chaulk

Services, Inc. v. Massachusetts Commission Against

Discrimination, 70 F.3d 1361 (1st Cir. 1995), a union

filed a ULP charge alleging interference with a union

employee’s organizing activity and the union employee

filed a state claim with a state agency based on the

same organizing activity. Id. at 1363.

In each of these cases, the controversy presented

to the state court was the same as the controversy presented to the NLRB within the meaning of Sears’ identical controversy test. In Chaulk, the union employee’s state claims were expressly based on her union activity. Id. at 1366. In Platt, the union employee’s state claims were based on conduct protected

by the collective bargaining agreement and the Act.

Platt, supra, 959 F.2d at 95. In Parker, the union employees raised state claims that were “in substance allegations that the Company breached its duty to bargain in good faith.” Parker, supra, 855 F.2d at 1516.

In Parker and Platt, the circuit courts also suggested, in dicta: “We believe that the primary jurisdiction rationale has the greatest validity when a party

has sought redress for his claims from the NLRB and

in the face of an adverse decision the claims are restructured as state law claims and pursued in state

court.” E.g., Parker, supra, 855 F.2d at 1517; Platt,

supra, 959 F.2d at 95.

This “suggestion of the law” 11 does not create a

conflict about the Garmon guidelines themselves. To

the extent the suggestion is accurate – and not contrary to Nash, Linn, and Belknap – it simply means

that the existence of a prior ULP charge is one factor

that may be considered in applying the guidelines to

the case at hand.

For example, Platt and Parker both concerned

conduct protected by the Act, which is analyzed differently than conduct prohibited by the Act. Sears, supra, 436 U.S. at 200; (Pet. App. 28a-29a).

Courts

Volentine v. Bechtel, Inc., 27 F.Supp. 728, 733 (E.D. Tex. 1998)

(refusing to find preemption based solely on Parker’s “suggestion”

of the law.)

have concluded that the existence of a prior ULP

charge or NLRB settlement carries less force in these

latter cases. See, e.g., United Food & Commercial

Workers v. Wal-Mart Stores, 228 Md.App. 203, 211212 (Md.Ct.Sp.App. 2016), affirmed 453 Md. 482

(Md.Ct.App. 2017) (finding no preemption of trespass

action against the union despite ULP charges and

NLRB settlement arising from the same conduct);

Wal-Mart Stores v. United Food & Commercial Workers, 4 Cal.App.5th 194, 216-219 (2016) (distinguishing

Parker, and finding no preemption of trespass action

against union despite prior ULP charge arising from

the same conduct).

Regardless, the decision below did, in fact, consider the ULP charge and NLRB settlement in applying the Garmon guidelines. It also considered that,

unlike the cases relied upon by Petitioners, this case

involved no union and no labor dispute, the state laws

at issue protect all employees as individuals, none of

the claims challenged conduct arguably protected, as

opposed to arguably prohibited, by the Act, and the

controversy presented to the state court was different

than the one presented to the NLRB. In light of the

specific circumstances of this case, the decision below

found no preemption under the Garmon guidelines.

That other cases, applying the same guidelines, have

found preemption based on different circumstances is

not the stuff of Supreme Court review.

Petitioners’ Disagreement With The

Application of the Garmon Guidelines Does Not Justify Supreme

Court Review

Petitioners argue the decision below was wrong

because employer NDAs and related policies restricting speech about terms and conditions of employment

strike “at the heart of protected Section 7 rights” (Pet.

p. 14). Petitioners did not make this argument to either the appellate court or the state supreme court and

have thus waived it.

Assuming the argument is not waived, it fails.

The Act protects the right of statutory employees to

engage (or not engage) in protected concerted activity.

29 U.S.C. § 157. Activity is protected when, among

other things, it is “for mutual aid and protection.” Id.

This language is narrow, and only embraces objects

similar in nature to “self-organization, forming, joining, or assisting labor organizations, or bargaining collectively.” Epic Systems, supra, 138 S. Ct. at 1625. Activity is “concerted” when it is group action rather

than action solely on behalf of the employee as an individual.

E.g., Alstate Maintenance LLC¸ 367

N.L.R.B. No 68 (2019), 2019 WL 183862 * 3.

Thus, while the right of statutory employees to

discuss wages and working conditions with each other

for the purpose of engaging in protected concerted activity may be central to the Act, the same speech to

third-parties, even for section 7 purposes, is less so.

E.g, Motor City Pawn Brokers Inc., 369 NLRB No. 132,

2020 WL 4339249, *7-9 (2020) (non-disparagement

rule does not violate the Act even though it infringed

on section 7 rights). And the right of all employees to

speak about their employers, wages, or working

conditions for reasons unrelated to section 7 rights -e.g., to negotiate a higher salary with a new employer,

impress a date, write a book, see a therapist, or complain, on an individual basis, about their wages – is

not protected at all by the Act. See, e.g., Alstate, supra,

2019 WL 183862, *3-4. This right is, however, established and protected by California’s anti-gag rule.

(Pet. App. 19a).

Petitioners also contend the decision below failed

to appropriately weigh the risk of interference with

the NLRA’s regulatory scheme in light of the NLRB

settlement as to Google. But contrary to the petition’s

claim, an NLRB proceeding – regardless of whether it

results in a finding that the employer violated the Act

– does not deprive state courts of jurisdiction to enforce state laws under the local interest exception.

Garmon, supra, 359 U.S. at 247. Even if it did, the

settlement here did not result in a finding that Google

had committed an unfair labor practice. Rather, the

settlement was similar to the dismissal of the ULP

charge in Linn (where there was also no finding of liability under the Act). In neither this case nor Linn did

the outcome of the ULP charge affect the state court’s

jurisdiction. As the decision below explains, even

when there is a serious concern of interference:

“Where the local interest is strong, even the possibility

of factual findings that conflict with the NLRB need

not be fatal.” (Pet. App. 31a).

The petition also makes much of the decision’s

statement that certain language in the NLRB settlement suggested the regional director did not see the

state action as a threat to the NLRB’s jurisdiction.

(Pet p. 17-19). This argument, also, was not raised by

Petitioners below and is waived. Regardless, the language in the decision about the meaning of specific

settlement language is dicta sandwiched between the

appellate court’s conclusion that there was no preemption under a balanced inquiry analysis (Pet App. 17a20a) and no preemption under Sears’ single controversy test. (Pet App. 22a-25a).

Even if this language was more than dicta, the decision’s interpretation of the specific settlement before

it was correct under Garmon. Both the regional director and the General Counsel confirmed – when confronted with Doe’s objections – that “the Settlement

Agreement covers only the alleged violations of the Act

and does not seek to remedy or cover other matters not

before the Board.” (E.g., Pet. App. 165a). In other

words, the regional director, General Counsel, and appellate court are in accord as to the limited import of

the NLRB settlement as it relates to the pending state

court action.

Lastly, Petitioners argue the decision overweighed the State’s interests based on Petitioners’ belief the decision “strongly suggests that any PAGA

claim [to enforce the California Labor Code] would

qualify for the local interests exception.” (Pet. p. 19).

This misreads the decision, which specifically states

that Garmon establishes no bright line rules.

(Pet.App. 31a-32a). It is also a strawman. The California Labor Code – including “the 151 different types

of Labor Code violations for which PAGA penalties are

available” (Pet. p. 20) – largely concerns things like

the payment of wages (e.g. Labor Code §§ 200-202),

working hours (e.g., Labor Code §§ 500-512), child labor (e.g., Labor Code §§ 1285-1310), and the like.

These provisions have nothing to do with conduct arguably or actually prohibited by the Act, and their continued existence poses no threat at all to the NLRB’s

jurisdiction.

The appellate court conscientiously applied the

Garmon guidelines to the facts and claims before it.

Petitioners’ disagreement with this particular application of the Garmon guidelines is not a basis for granting review.

V. SUMMARY REVERSAL IS INAPPROPRIATE

Petitioners finally assert the decision below

should be summarily reversed because of its “radical

expansion” of the local interest exception. As detailed

above, there was no radical expansion; just an ordinary, case-specific, application of the Garmon guidelines.

Petitioners, on the other hand, seek through summary reversal immunity from state laws concerning

restrictive covenants, whistle-blowing, and speech

that are, on their face, entirely unrelated to the mutual aid and protection covered by the Act. (Pet.App.

16a). They also seek immunity from state laws protecting employees, like supervisors, undisputedly outside the jurisdiction of the Act. 29 U.S.C. § 152(3). And

they seek immunity from these state laws for all Petitioners because John Doe, a supervisor outside the jurisdiction of the Act, filed a ULP charge as to one Petitioner, even though this Court has concluded that

denying a state remedy because a person files a charge

is contrary to the Act. Nash, supra, 389 U.S. at 239.

In other words, it is the petition that seeks the

“radical” remedy. But the Garmon guidelines are not

radical. Regardless of whether Congress might have

granted companies like Google broad immunity from

other state laws in other circumstances, 12 it granted

them no such broad immunity from the state laws at

issue here when it passed the NLRA.

The petition should be denied.

Respectfully submitted.

JAHAN SAGAFI

OUTTEN & GOLDEN LLP

1 California St.

Ste 1250

San Francisco, CA 94104

jsagafi@outtengolden.com

(415) 638-8808

MICHAEL SCIMONE

JULIO SHARP-WASSERMAN

OUTTEN & GOLDEN LLP

685 3rd Ave, 25th Floor

New York, NY 10017

msccimone@outtengolden.com

jsharp-wasserman@outtengolden.com

(212) 245-1000

CHRIS BAKER

Counsel of Record

DEBORAH SCHWARTZ

BAKER CURTIS & SCHWARTZ, P.C.

1 California St.

Suite 1250

San Francisco, CA 94111

cbaker@bakerlp.com

(415) 433-1064

Counsel for Respondents

September 8, 2021

See, e.g., 47 U.S.C. § 230; Malwarebytes, Inc. v. Enigma Software Group U.S.A. LLC, 141 S.Ct. 13 (2020) (Statement of Justice Thomas).

APPENDIX

TABLE OF CONTENTS

Appendix 1 Fifth Amended Complaint in the

Superior Court of California County of

San Francisco

(November 21, 2017) . . . . . . . . . . . App. 1

Appendix 2 Constitutional, Statutory, and

Regulatory Provisions

Involved . . . . . . . . . . . . . . . . . . . . App. 72

App. 1

APPENDIX 1

CHRIS BAKER, State Bar No. 181557

cbaker@bakerlp.com

DEBORAH SCHWARTZ, State Bar No. 208934

dschwartz@bakerlp.com

BAKER CURTIS & SCHWARTZ, P.C.

44 Montgomery Street, Suite 3520

San Francisco, CA 94104

Telephone: (415) 433-1064

Fax: (415) 366-2525

Attorneys for Plaintiffs

JOHN DOE, DAVID GUDEMAN

AND PAOLA CORREA

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

_________________________________________

JOHN DOE, DAVID GUDEMAN

)

and PAOLA CORREA on behalf of the

)

State of California and aggrieved employees, )

)

Plaintiff,

)

vs.

)

GOOGLE, INC., ALPHABET, INC.,

)

ADECCO USA INC., ADECCO GROUP

)

NORTH AMERICA and ROES 1 through 10, )

Defendants.

)

_________________________________________ )

App. 2

Case No. CGC-16-556034

[Filed November 21, 2017]

FIFTH AMENDED COMPLAINT PURSUANT

TO THE PRIVATE ATTORNEYS GENERAL

ACT

DEMAND FOR JURY TRIAL

Dept: 304

Judge Curtis Karnow

Complaint Filed: December 20, 2016

Trial Date: Not Set

IMPORTANT NOTES

In this Fifth Amended Complaint, Plaintiffs

Doe Gudeman, and Correa re-allege the causes of

action 1 through 22 that the Court dismissed without

leave to amend. Correa also re-alleges the 23rd cause

of action as to Adecco with respect to the GBike and

Social Event Releases that the Court dismissed without

leave to amend.

Plaintiffs re-plead these causes of action here

as a matter of caution, in order to preserve without

doubt their right to appeal the Court’s prior orders in

this case, including the June 27, 2017 Order, the

September 14, 2017, and the November 7, 2017 Order.

See, e.g., County of Santa Clara v. Atlantic Richfield

Co. (2006) 137 Cal.App.4th 292, 312 (“where the

plaintiff chooses to amend, any error in the sustaining

of the demurrer is ordinarily waived”); Miletak v. All

State Ins. Co. (N.D. Cal 2007) 2007 WL 7061350, *3-5

(stating that “under Ninth Circuit precedent, a plaintiff

App. 3

must re-allege even dismissed causes of action in order

to preserve them for appeal.”); But see, potentially CCP

§ 472c(b)(1) (noting that an appeal remains open “to a

cause of action within a complaint or cross-complaint

where the order did not sustain the demurrer as to the

entire complaint or cross-complaint,” without

explaining if this is on a per party basis, and without

explaining the impact of a demurrer sustained with

leave to amend as to all causes of action but one).

Per the Court’s November 7, 2017 Order, this

amendment expressly adds a cause of action against

Adecco with respect to its liability for the harassment

release that Adecco requires its employees working at

Google to sign.

INTRODUCTION AS TO GOOGLE

Google’s motto is “don’t be evil.” Google’s

illegal confidentiality agreements,

policies, and

practices fail this test.

As a condition of employment, Defendants

Google, Inc. and Alphabet, Inc. (collectively “Google”

unless the context clearly indicates otherwise) require

all of their current and former employees, including

supervisors, managers and contingent workers

(collectively “Googlers”), to comply with illegal

confidentiality agreements, policies, guidelines, and

practices. These illegal policies and agreements restrict

the Googlers’ right to speak, right to work, and right to

whistle blow. The policies prohibit Googlers from

speaking plainly – even internally – about illegal

conduct or dangerous product defects, because such

statements might one day be subject to discovery in

App. 4

litigation or sought by the government. The policies

prohibit Googlers from telling a potential employer how

much money they make, or what work they performed,

when searching for a different job. The policies prohibit

Googlers from using or disclosing all of their skills,

knowledge, acquaintances, and their overall experience

at Google when working for a new employer. The

policies prohibit Googlers from speaking to the

government, attorneys, or the press about wrongdoing

at Google. The policies even prohibit Googlers from

speaking to their spouse or friends about whether they

think their boss could do a better job.

Google’s unlawful confidentiality policies are

contrary to the California Labor Code, contrary to

public policy, and contrary to the interests of the State

of California. The unnecessary and inappropriate

breadth of the policies are intended to control Google’s

former and current employees, limit competition,

infringe on constitutional rights, and prevent the

disclosure and reporting of misconduct. The policies are

wrong and illegal.

This case does not concern Google’s trade

secrets, consumer privacy, or information that should

not be disclosed under the law (such as material

non-public information under the securities laws). This

case instead concerns Google’s use of confidentiality

and other agreements and policies for illegal and

improper purposes. Google defines essentially

everything as “confidential information.” However, a

publicly-traded company with Google’s reach, power,

and close ties to the federal government cannot be

permitted to declare to its workforce that everything

App. 5

it does and everything that happens – from the location

of a water cooler to serious violations of the law – is

“confidential” upon pain of termination and the threat

of ruinous litigation.

INTRODUCTION AS TO ADECCO

Defendant Adecco is a staffing firm with

thousands of temporary employees that it provides to

California-based clients as “contingent workers.” In

legal parlance, Adecco is the “primary employer” of

these employees, and Adecco’s clients are the

“secondary employers” of these employees. One of

Adecco’s clients is Google.

Adecco requires its temporary employees

throughout California to agree to a confidentiality

agreement, commitment sheet, handbook, policies, and

practices that violate the California Labor Code.

Adecco requires its temporary employees, throughout

California, to abide by these illegal agreements,

policies and practices during their employment and

forever after.

10.

This is against the law.

PARTIES

Plaintiffs

11.

John Doe resides in San Francisco. From

July 2014 to April 2016, Doe worked as an “L5” Product

Manager for Google at one of Alphabet’s “other bets”

companies called Nest. Even then, he was a high-level

employee, only three steps removed from Alphabet

CEO Larry Page.

App. 6

12.

In April 2016, Doe was unceremoniously

terminated from Google after being falsely accused of

disclosing certain memes concerning Nest working

conditions to the press. He did not.

13.

Doe uses a pseudonym because he should not

be required to self-publish his name, which would then

be tied to Google’s defamatory statements about him,

in order to enforce rights under the Labor Code.

Moreover, as the allegations set forth below make

clear, Google is extraordinary intolerant of individuals

who disclose information about working conditions

(which this lawsuit does), and Doe rightfully fears

retaliation.

14.

Doe, as an L5 Product Manager, was a

supervisory and/or managerial employee of Google

outside the coverage of the National Labor Relations

Act. Google contends that Doe, as an L5 Product

Manager, was a supervisory/managerial employee, and

it is judicially estopped from claiming otherwise.

Moreover, the General Counsel of the NLRB concluded

that Doe – as an L5 Product Manager -- “possesses

supervisory authority to promote and that he has

effectively promoted an employee with the use of

independent judgment,” and that he “formulates and

effectuates the Employer’s policies regarding the

production of its products and in so doing he exercises

discretion in the interests of the Employer.” The

General Counsel’s final decision in this regard was

made on behalf of the Board. It thus extinguishes the

Board’s primary (as opposed to exclusive) jurisdiction

over the circumstances of Doe’s termination as an L5

Product Manager.

App. 7

15.

Regardless, as an L5 Product Manager, Doe

was inarguably a managerial/supervisory employee of

Google outside the protection of the National Labor

Relations Act.

16.

Perhaps more importantly, in June 2016,

Google reinstated Doe and promoted him to the

previously-promised position of an L6 Product

Manager. He thus became an even higher-level and

more important employee of Google. Among other

things, Google describes the L6 Product Manager role

thus:

[L6 Product Manager] owns a coherent portfolio

of projects and is accountable for the entire

product life cycle and identifying new areas of

investment (new projects) for the product.

Product decisions are highly complex and have

long-term strategic impact on the overall

Product Area, affecting all Customer’

constituents.

[L6 Product Manager] is the entrepreneurial

negotiator for their team. They can identify,

negotiate, and secure resources needed for a

plan they define. They understand the priorities

of their extended team (i.e., their Product/PA)

and how to operate effectively within them. They

proactively propose trade-offs in resourcing or

scope and identify ways for disparate teams to

work together to achieve a common goal.

[L6 Product Manager] regularly identifies new

product opportunities and is highly adept at

building consensus for and support of those

ideas. They are a highly effective and respected

App. 8

decision maker on their project portfolio,

recognized as a product expert in that area. PM

is skilled at working the whole team through

complex and controversial decisions quickly but

thoughtfully to ensure the right decision is made

and the whole team is supportive of and

motivated towards that outcome.

17.

Doe remains employed by Google as an L6

Product Manager. It is inarguable that from June 2016

to the present (if not before), Doe was a managerial

and/or supervisory employee of Google outside the

coverage of the National Labor Relations Act. Among

other things, he is inarguably high in the managerial

structure, he is aligned with management, he

formulates and effectuates Google’s policies regarding

the production of its products, and he exercises

significant discretion. He was and remains subject to

the agreements, policies, and practices of Google at

issue in this litigation.

18.

Doe is an “aggrieved employee” under PAGA,

which applies to employees, as well as to supervisors

and managers outside the coverage of the NLRA.

19.

David Gudeman resides in South San

Francisco. From November 2013 to December 2016

Gudeman worked for Google as a software engineer. In

early December 2016, Google terminated Gudeman’s

employment, stating that he was “unable to meet

expectations for a Software Engineer III.” Gudeman

disagrees with this claim. Gudeman was not

terminated for conduct that is arguably protected or

prohibited by the National Labor Relations Act.

Gudeman was also not arguably terminated as a

App. 9

consequence of, or in connection with, a labor dispute.

20.

Gudeman seeks to write a book about Google.

However, as a former employee, he remains subject to

Google’s unlawful confidentiality agreement as well as

its unlawful policies and practices (which are

incorporated by reference into the confidentiality

agreement).

21.

Gudeman has no expectation of ever working

for Google or Alphabet again.

22.

Gudeman is an “aggrieved employee” under

PAGA. As a former employee who was not terminated

in connection with a labor dispute or because of an

unfair labor practice, he is inarguably outside the

coverage of the NLRA.

23.

Paola Correa resides in San Francisco.

Correa was directly employed by Google in 2013 and

then again in 2014 as an intern. As part of her

termination from Google on those occasions, Google

required Correa to sign an “exit certificate” (which is

discussed below). On both occasions, Correa separated

from Google voluntarily because the internship had

ended. Correa did not separate from Google on these

occasions because of conduct that is arguably protected

or prohibited by the National Labor Relations Act.

Correa was not arguably separated from Google on

these occasions as a consequence of, or in connection

with, a labor dispute.

24.

In August 2015 Correa began work for Adecco

and was assigned to work at Google as a Sales

Coordinator and then Inside Sales Specialist. Correa

App. 10

was supervised and directed by both Google and Adecco

during this time frame, both of whom acted as her joint

employers. On or around July 7, 2016, Google and

Adecco required Correa to sign Google’s standard

confidentiality agreement for contingent workers

entitled: “Confidential Information and Invention

Assignment Agreement for Non-Employee Workers.”

This confidentiality agreement is similar to that which

Google requires its full-time employees to sign. This

agreement also contains the “harassment release”

discussed below.

25.

Google and Adecco concealed the existence of

the July 7, 2016 confidentiality agreement from

Plaintiffs and only produced it to Plaintiffs’ counsel on

October 5, 2017.

26.

In December 2016, Adecco and Google

terminated Correa. Among other things, Google and

Adecco terminated Correa because she is a Latina

woman. Defendants also stated it was terminating her

employment because she had informed someone

outside of Google that she worked for Google (which

she did) and for disclosing so-called “confidential

information” (which was not confidential) to someone

outside of Google. Google and/or Adecco did not

terminate the white men who engaged in similar

conduct.

27.

Since her termination, Adecco has steadfastly

refused to state why, exactly, Correa was terminated.

It refuses to identify who decided to terminate her. The

only written document produced by Adecco or Google

concerning Correa’s termination simply states Correa

was “not a good fit.”

App. 11

28.

Despite Correa’s discovery requests, Adecco

refuses to produce documents concerning Correa’s

termination.

29.

Despite Plaintiffs’ Labor Code and discovery

requests, Google refuses to produce documents

concerning Correa’s December 2016 termination,

claiming all such documents are “privileged.” Google

has not produced a privilege log.

30.

Correa was not terminated for conduct that

was arguably protected or prohibited by the National

Labor Relations Act. Correa was not arguably

terminated as a consequence of, or in connection with,

a labor dispute.

31.

Upon her termination in December 2016,

Adecco required Correa to sign an “exit certificate.” On

information and belief (because this writing has been

withheld by Defendants), this exit certificate required

Correa to continue to abide by Adecco’s and potentially

Google’s confidentiality agreements, policies, and

practices.

32.

Correa has no expectation of ever working for

Google, Alphabet, or Adecco again. Among other things,

Google and Alphabet refuse to rehire her ever again.

33.

Correa is an “aggrieved employee” under

PAGA. As a former employee who was not terminated

in connection with a labor dispute or because of an

unfair labor practice, she is inarguably outside the

coverage of the NLRA with respect to Defendants.

App. 12

Google and Alphabet

34.

Defendant Google, Inc. is headquartered in

Silicon Valley. It has offices in San Francisco. Google

directly employs, at any given time, approximately

87,000 employees, including managers and supervisors

undisputedly outside the jurisdiction of the NLRA.

Google also employs an unknown number of contingent

workers. On information and belief, there are

thousands more former employees who continue to be

subject to Google’s unlawful agreements and policies.

All of these individuals are aggrieved employees under

PAGA.

35.

Defendant Alphabet, Inc. is a publicly-traded

corporation headquartered in Silicon Valley. It was

founded in 2015 by the founders of Google as a holding

company for Google and other companies owned by

Alphabet. Alphabet and Google share directors and

executives. They also share property. They share

procedures and policies. On information and belief,

Google and Alphabet exercise common control of labor

relations.

36.

Google and Alphabet constitute either joint

employers of all Googlers, or they constitute a single

employer or integrated enterprise. Both entities are

liable for each of the PAGA violations alleged in this

Fourth Amended Complaint (except as to those that are

alleged solely against Adecco). Google and Alphabet are

also the employers of its contingent workers, including

those that are employed by Adecco.

App. 13

Adecco

37.

Adecco Group North America and Adecco

USA Inc. (collectively “Adecco”) are headquartered in

Florida. Both employ contingent workers like Correa

throughout California.

SUMMARY OF LEGAL VIOLATIONS

38.

First, it is an unlawful business practice in

California to require employees to sign, as a condition

of employment, a Confidentiality Agreement or policy

that restrains trade. California Business & Professions

Code § 17200, California Business & Professions Code

§ 16600, and the Cartwright Act. Google and Adecco’s

“confidentiality agreements” unlawfully restrain trade

because they prevent employees from effectively

seeking new work. If they do find new work, these

agreements and policies prohibit former employees

from using or disclosing information that is not

confidential as a matter of law. Among other things,

the agreements and policies prohibits employees from

using all of the skills, knowledge, acquaintances, and

the overall experience they obtained at Google or

Adecco in their new employment. The agreements and

policies also restrain the right of former employees to

recruit their former colleagues using information that

is not confidential as a matter of law.

39.

Indeed, the Adecco Confidentiality

Agreement and policies go even further. They prevent

employees from working for an Adecco client without

Adecco’s permission, approaching an Adecco client

about work, or contacting an Adecco client following

the end of an assignment.

App. 14

40.

Second, California Labor Code § 96(k)

expressly permits employees to engage in lawful

conduct during non-work hours away from their

employer’s premises. This lawful conduct includes the

exercise of constitutional rights such as freedom of

speech and freedom to work. California Labor Code

§ 98.6(b) prohibits an employer from threatening to

discharge employees who exercise their constitutional

rights and/or engages in lawful conduct during nonwork hours.

41.

Google and Adecco threaten to discharge

employees who exercise their constitutional rights by

providing information to the press or otherwise

exercising their freedom of speech rights under the

California and United States Constitutions, as well as

their rights under the Labor Code. Google and Adecco

also threaten to discharge employees who disclose

“confidential information” to prospective employers in

furtherance of their right to economic liberty under the

California and United States Constitutions. This is a

violation of Labor Code § 98.6(b).

42.

Third, in any contract or agreement that

governs the use of trade secrets or confidential

information, an employer must give employees notice

that:

a. An individual shall not be held

criminally or civilly liable under any

Federal or State trade secret law for

disclosure of a trade secret that is

made in confidence to a Federal, State,

or local government official . . . or to

an attorney . . . for the purpose of

App. 15

reporting or investigating a suspected

violation of the law. And

b. The use and disclosure of a trade

secret to an attorney as it relates an

anti-retaliation lawsuit is permitted.

The trade secret may also be filed with

a court in certain circumstances.

Federal Defend Trade Secrets Act § 7(b).

43.

Google and Adecco do not include the

required notices in their confidentiality agreements

with employees. Instead, they inform employees that

they cannot disclose “confidential information” to

anyone – even to an attorney or the government. This

is a violation of the Federal Defend Trade Secrets Act

and California’s Unfair Competition Law. Cal.

Business & Professions Code § 17200 et seq.

44.

Fourth, Rule 21F-17 of the Securities and

Exchange Commission provides that “no person may

take any action to impede an individual from

communicating directly with the Commission staff

about a possible securities law violation, including

enforcing or threatening to enforce a confidentiality

agreement . . . . with respect to such communications.”

Defendants’ confidentiality agreements and policies

unlawfully prohibit employees from reporting possible

securities law violations to the SEC. This violates SEC

Rule 21F-17 and California’s Unfair Competition Law.

Cal. Business & Professions Code § 17200 et seq.

45.

Fifth, it is against public policy to prohibit

current or former employees from providing evidence

and information to an attorney representing

App. 16

shareholders about potential violations under the

securities laws, as well as to an attorney or the

government with respect to violations of state or

federal false claims acts. Google’s and Adecco’s

confidentiality agreements and confidentiality policies

do just that. This violates California’s Unfair

Competition Law. Business & Professions Code § 17200

et seq.

46.

Sixth, California Labor Code §§ 232(a) and

(b) prohibit employers from requiring, as a condition of

employment, that an employee refrain from disclosing

the amount of his or her wages. Google’s and Adecco’s

confidentiality policies (including Adecco’s employee

handbook) prohibit employees from disclosing the

amount of their wages. This is a violation of Labor

Code §§ 232(a) and (b). In addition to the policies,

Adecco’s confidentiality agreement also prohibits

employees from disclosing information about and the

amount of their wages.

47.

Seventh, California Labor Code § 1197.5(k)

(formerly Labor Code § 1197.5(j)) states that “an

employer shall not prohibit an employee from

disclosing the employee’s own wages, discussing the

wages of others, inquiring about another’s wages, or

aiding or encouraging any other employee to exercise

his or her rights under this section.” Google’s and

Adecco’s confidentiality agreements and policies

prohibit employees from engaging in any of these acts.

This is a violation of Labor Code § 1197.5(j)/(k).

48.

Eighth, California Labor Code § 232.5(a) and

(b) prohibits employers from requiring, as a condition

of employment, that an employee refrain from

App. 17

disclosing information about the employer’s working

conditions. Google and Adecco, through their unlawful

confidentiality policies (and, where applicable,

agreements), prohibit employees from disclosing this

information. Indeed, Google and Adecco expressly

declare that employment policies and agreements

which concern working conditions are “confidential.”

This is a violation of Labor Code § 232.5.

49.

Ninth, California Labor Code § 1102.5(a)

states that an employer “shall not make, adopt, or

enforce any rule, regulation or policy preventing an

employee from disclosing information to a government

or law enforcement agency if the employee has

reasonable cause to believe that the information

discloses a violation [of the law].” Google’s and Adecco’s

requirement that employees sign illegal confidentiality

agreements violate this provision. Google’s and

Adecco’s unlawful confidentiality policies (including the

Adecco handbook) also prohibit disclosure of

information to the government or a law enforcement

agency of potential violations of the law. The

agreements and policies thus violate Labor Code

§ 1102.5(a).

50.

Tenth, California Labor Code § 1102.5(a)

also states that an employer shall not make, adopt, or

enforce any policy that prevents an employee from

disclosing information to a person with authority over

the employee, or to an employee who has the authority

to investigate, discover, or correct the violation of law,

if the employee has reasonable cause to believe that the

information discloses a violation of the law.

Defendants’ unlawful policies restrict employees from

App. 18

reporting violations of the law internally. Googlers are

prohibited from communicating to other Googlers that

a Google product may be dangerous or that Google’s

conduct is illegal. This is another violation of Labor

Code § 1102.5(a).

51.

Eleventh, California law prohibits requiring

employees, as a condition of employment, to waive

rights or claims. In the relevant time period, Google

required all Googlers to agree, as a condition of

employment, to waive their statutory rights to bring

discrimination, harassment, and other claims. Adecco

requires all its employees to agree, as a condition of

employment, to waive their statutory rights and claims

with respect to their participation in “social events

and/or activities” and their use of a “GBike.” Adecco

also required its employees working at Google as

contingent workers to agree to waive their statutory

rights to bring discrimination, harassment, and other

claims by requiring them to sign the Google

harassment release.

FACTS

As to Google and Alphabet

Google’s Confidentiality Agreement

52.

On July 14, 2014, Google offered Doe a job. In

his offer letter, Google stated: “as an employee of

Google, it is likely that you will become knowledgeable

about confidential, trade secret, and/or proprietary

information related to the operations, products, and

services of Google and its clients. To protect the

interests of both Google and its clients, all employees

are required to read and sign the enclosed At-Will

App. 19

Employment, Confidential Information, and Invention

Assignment and Arbitration Agreement as a condition

of employment with Google.” (“The Confidentiality

Agreement”).

53.

On October 8, 2013 Google offered Gudeman

a job. Gudeman’s offer letter contained the same

language as Doe’s with respect to the obligation to sign

the Confidentiality Agreement.

54.

In the spring of 2013, and again on February

11, 2014, Google offered Correa a job. Correa’s offer

letters contained the same language as Doe’s with

respect to the obligation to sign the Confidentiality

Agreement. Correa was also required to sign the

confidentiality agreement for temporary workers in or

around July 2016.

55.

Like all Googlers, Plaintiffs signed the

Confidentiality Agreement. The Agreement defines

“confidential information” to mean, “without limitation,

any information in any form that relates to Google or

Google’s business that is not generally known,”

including “employee data.” (Emphasis added).

56.

The Agreement further requires Googlers,

both during and after their employment, to “hold in

strictest confidence and take all reasonable precautions

to prevent any unauthorized use or disclosure of Google

Confidential Information” and to “not (i) use Google

information for any purpose other than for the benefit

of Google in the scope of [the Googler’s] employment, or

(ii) disclose Google ‘confidential information’ to any

third party without prior authorization.” Moreover, the

Agreement requires Googlers to agree that “all Google

App. 20

Confidential Information that [they] use or generate in

connection with [their] employment belongs to Google

(or third parties identified by Google).”

57.

Google also makes clear that the failure to

abide by its Confidentiality Agreement can lead to

draconian results. Googlers must agree, as a condition

of their employment, that any “unauthorized use or

disclosure of Google ‘Confidential Information’ during

my employment or after my employment may lead to

disciplinary action, up to and including termination

and/or legal action.”

58.

Google also prohibits employees from

delivering to others information that does not even fall

within Google’s overly-broad definition of “confidential

information.” Upon termination, Googlers must agree

to “not keep, recreate, or deliver to any other person or

entity any documents and materials pertaining to

[their] work at Google” (whether it is “confidential”

under Google’s overbroad definition or not).

59.

The Confidentiality Agreement contains no

geographic or time limitation. Rather, it lasts forever,

and applies even after Googlers end their employment

with Google.

60.

The Agreement also requires Googlers to

abide by Google’s ‘Confidential’ Code of Conduct and all

other Google’s policies. Separately, Google also requires

Googlers to agree, in writing, to its policies and

practices throughout the course of their employment.

App. 21

Google’s Policies, Guidelines and Practices

61.

In addition, Google and Adecco’s policies,

guidelines, practices and enforcement conclusively

establish that, according to Google, disclosure of any

information pertaining to Google is never warranted

and not permitted by law.

Google’s “Confidential” Code of Conduct Policy

62.

Google maintains a Code of Conduct policy

that is for “internal purposes only.” This “confidential’

Code of Conduct policy states that “all documents, site

pages, and resources that are linked here as well as the

document as a whole are considered internal and

confidential.” Google’s “confidential” Code of Conduct

policy applies to all Googlers. Google states that the

failure to follow the “confidential” Code of Conduct

policy “can result in disciplinary action, including

termination of employment.”

63.

The “confidential” Code of Conduct policy

prohibits Googlers from disclosing “confidential

information” [which means everything at Google]

without authorization.” The internal policy goes further

and states that “it’s also a bad idea to post your

opinions or information about Google on the Internet,

even if not confidential, unless you’re authorized to do

so as part of your job. . . . And never discuss the

company with the press unless you’ve been explicitly

authorized to do so by Corporate Communications.”

64.

The “confidential” Code of Conduct policy

concludes by stating that Google expects “all Googlers

to be guided by both the letter and the spirit of this

Code.”

App. 22

Data Classification Guidelines

65.

Plaintiffs, like all Googlers, are also subject

to Google’s Data Classification Guidelines. The

Guidelines categorize Google information into three

categories: “Need-to-Know,” “Confidential,” and

“Public.” A “Data Owner” is responsible for categorizing

the information, and, at Google, “no information at

Google is public by default.”

66.

Specifically, the Data Classification

Guidelines state: “Everything we work on at Google –

all the data and information we create, details of what

we do, how we operate, and our plans for the future –

is, at a minimum, Confidential. . . . Even if some

elements of the information are known outside of

Google or have been speculated about in public, it is

considered confidential until the Data Owner explicitly

makes it public.” Accordingly, even public information

is “confidential” at Google. This information includes

information about a Googler’s compensation, his or her

performance, and the persons with whom the Googler

works (i.e., “team information”).

Employee Communication Policy

67.

In addition to requiring Googlers to keep all

information about Google “confidential,” Google places

additional onerous restrictions on Googlers’ freedom to

speak.

68.

Google’s “Employee Communication Policy”

states that if a Googler shares “confidential

information” outside the company, they “may be

terminated, held personally liable, or subject to

prosecution.” The policy goes on to state that – “even if

App. 23

you didn’t intend your personal observation to be

public, if you violate your confidentiality obligations by

disclosing non-public information outside of Google, you

may be subject to legal action.”

69.

The Employee Communication Policy states

that the vast majority of Googlers cannot speak about

Google at all. Rather, “only authorized Googlers are

permitted to talk about the company with the press,

members of the investment community, partners, or

anyone else outside Google.” Moreover, if an authorized

Googler does mention Google outside of work, the

Googler is permitted only to cite information from

Google’s “corporate blogs or social media accounts.”

Authorized Googlers are also permitted to repeat

“approved talking points and metrics at go/

keymessages.”

70.

Google not only prohibits employees from

speaking about Google, it also prohibits employees from

writing creative fiction. Among other things, Google’s

Employee Communication Policy prohibits employees

from writing “a novel about someone working at a tech

company in Silicon Valley” unless Google gives prior

approval to both the book idea and the final draft.

71.

In addition, the Employee Communication

Policy prohibits Googlers from speaking with the press

“without prior clearance from Google’s communications

team.” Google’s policy also is to prohibit Googlers from

speaking with “any member of the investment

community about the company.” Because Google is a

publicly-traded company, members of the “investment

community” include countless individuals. For

App. 24

example, anyone with a 401(k) plan is potentially a

“member of the investment community.”

72.

Google’s “Communications and Disclosure

Policy” eliminates any ambiguity that might exist with

respect to a Googler’s ability to speak with the press or

the general public. This policy states: “Our employees

and members of our Board of Directors (other than our

authorized spokespersons) should not respond, under

any circumstances, to inquiries from the investment

community [i.e., countless individuals] or the media

unless specifically authorized to do so by an authorized

spokesperson.” Moreover, under Google’s “Appropriate

Conduct” policy, any speech that potentially

“undermines the reputation of Google” can lead to

termination of employment.

Google’s Efforts to Prevent Whistleblowing

73.

Google engages in a concerted effort to

prevent both internal and external whistleblowing,

even when employees have a reasonable basis for

believing that Google is violating the law. Specifically,

Google restricts what Googlers say internally in order

to conceal potentially illegal conduct. It instructs

employees in its training programs to do the following:

“Don’t send an e-mail that says ‘I think we broke the

law’ or ‘I think we violated this contract.’” The training

program also advises employees that they should not

be candid when speaking with Google’s attorneys about

dangerous products or violations of the law. The

program advises Googlers that some jurisdictions do

not recognize the attorney-client privilege, and “[i]nside

the U.S., government agencies often pressure

companies to waive the privilege.” Google advises

App. 25

Googlers that they “should write e-mails with the

assumption that somebody outside of Google, who may

not be friendly to us, will get to read it.”

74.

Indeed, a second training program entitled

“You Said What?” specifically states that Googlers

must “avoid communications that conclude, or appear

to conclude, that Google or Googlers are acting

‘illegally’ or ‘negligently,’ have ‘violated the law,’ should

or would be ‘liable’ for anything, or otherwise convey

legal meaning.” It other words, Googlers are prohibited

from communicating concerns about illegal conduct

within Google.

75.

As an example, in Google’s “You Said What?”

training program, Google instructs Googlers to

suppress information about dangerous products. Google

also specifically advises Googlers to delete paragraphs

from emails that suggest there are serious flaws in

Google technology, that Google may be sued, or that

there may be product liability damages. Googlers are

also instructed to delete written communications that

suggest Google might have breached any contracts.

Policies for Former Employees

76.

Google’s unlawful policies even apply to

ex-Googlers. As stated in Google’s “Prepare to Leave

Google” policy, Googlers “remain under the obligations

of the Confidentiality Agreement that [they] signed

when [they] joined Google. It is important that you do

not retain or disclose any confidential or proprietary

Google information including, but not limited to,

information related to [Google’s] products, business

App. 26

plans, customer lists, financial information, and

information related to [the Googler’s] work product.”

77.

This policy is further enforced by the “Exit

Certification” that Google requires Googlers to sign

upon termination. It states that “by signing this note,

you further agree that you have followed the terms of

the [Confidentiality Agreement]. . . . You agree that in

compliance with the Agreement, you will adhere to

your obligations to the Company, including those

contained in Section 2 (Confidential Information).”

Google Vigorously Enforces Its Illegal

Confidentiality Policies

78.

Google enforces its unlawful policies through,

among other things, employee training, internal

investigations, a spying program, self-confessions,

written and oral warnings, and the threat of

termination and litigation.

Employee Training

79.

In addition to the training programs set forth

above, another training program states: “Let’s be clear:

Depending on the circumstances, [violating the Code of

Conduct] could have significant consequences for you

up to, and including, losing your job.”

80.

This program also states: “We share a lot of

information at Google. You should treat all

information at Google as confidential unless you

know that it has been approved for public disclosure.”

81.

This lesson is emphasized in yet another

training program that states: “Google’s confidential

App. 27

information should never be shared outside the

Company without proper authorization.”

Stop Leaks

82.

Another way Google enforces its illegal

confidentiality policies is through its “Global

Investigations Team,” which is led by Brian Katz. This

team’s primary area of focus is “information security

issues when a Google employee is suspected of being

involved.” This includes “unauthorized disclosure of

‘confidential information’ or intellectual property

(‘leaks’).” The Global Investigations Team conducts

“interviews with the subjects of investigations, as well

as the victims and witnesses.” It “provides

recommendations regarding discipline for these

infractions when requested.” The Global Investigations

Team also relies on “volunteers” to report other

employees who might have disclosed any information

about Google.

83.

Google’s Investigations Team is in charge of

“Stopleaks,” Google’s company-wide effort to prevent

the disclosure of any information about Google and

enforce its illegal policies. According to Google,

“non-malicious leaks happen when an employee shares

information with an external person they trusted, and

other times internal and confidential information is

accidentally marked public. If you know you were

inadvertently responsible for a leak, let us know

quickly by emailing stopleaks@. We understand that

mistakes happen!”

84.

The Stopleaks program is managed through

an internal website that includes a Chrome extension

App. 28

to facilitate the reporting of alleged “leaks” on the

internet. Employees are required under Google policies

to report “leaks” to Stopleaks. A referenced above, a

violation of Google’s policies can result in termination.

85.

Under its “Stopleaks” program, after a

Googler submits a leak report to the Stopleaks site,

Google’s “team of Stopleaks super sleuths investigate

every leak. . . . The Stopleaks team researches the

project/product that was leaked and aims to determine

the leak’s origin. From here, [the Stopleaks team] often

liaise with other cross-functional Google teams that

may contribute additional context to the investigation.”

86.

In addition to “leaks,” Google also asks

Googlers to file “suspicious activity reports,” which

Google states can include “strange things you observe

or strange things that happen to you – like someone

asking you really detailed questions about your project

or job.”

87.

The purpose of Google’s “Stopleaks” program

is to deter employees from asking questions (even of

one another), or disclosing any information about

Google in violation of their constitutional and statutory

rights.

Other Communications and Threats of

Termination

88.

Google also enforces its illegal confidentiality

policies with dire warnings and the threat of

termination. A Google co-founder has assured Googlers

in all hands meetings that anyone who “leaks”

“confidential information” will soon be an ex-Googler.

App. 29

Google’s attorneys and executives advise Googlers by

email and orally that they will be terminated if they

disclose “confidential information.” Brian Katz assures

Googlers by email and otherwise to “[b]e aware of the

company information you share and with whom you

share it. If you’re considering sharing “confidential

information” to a reporter – or to anyone externally –

for the love of all that’s Googley, please reconsider! Not

only could it cost you your job, but it also betrays the

values that makes us a community.”

89.

As detailed above, the alleged “values” that

Katz and the Investigations Team contend make

Google a community violate California law and infringe

on Googlers’ legal rights.

Google’s Ineffective “Savings” Provisions

90.

Google – fully aware of the illegality of its

Agreement and policies – attempts to limit its liability

through meaningless “savings” clauses that purport to

create partial exceptions to the blanket prohibitions.

91.

For example, contrary to its “confidential”

Code of Conduct Policy, Google’s “Employee

Communication Policy” states that “[n]othing in this or

other Google policies is intended to limit employees’

rights to discuss with other employees the terms,

wages, and working conditions of their employment, or

communicate with a government agency regarding

violations of the law, as warranted and as protected by

the applicable law.” Regardless of Google’s alleged

“intent,” the plain language of the policies is to the

contrary. Also, because this savings clause applies only

to communications within Google, it is crystal clear

App. 30

that Google affirmatively intends to prohibit

communications about wages and working conditions

with those outside Google. Moreover, this savings

clause extends only to communications that are both

“warranted” and “protected by applicable law.” Despite

this alleged “exception,” Google’s policies, training

programs, and enforcement mechanisms all instruct

employees that the disclosure of “confidential

information” is never warranted. These policies,

training programs, and enforcement mechanisms also

make clear that – at Google – disclosure or use of

“confidential information” is not permitted by law.

Rather, any “unauthorized” disclosure is prohibited by

law, and, as Google repeatedly explains to its

workforce, can result in legal action, prosecution, and

personal liability.

92.

In September 2016, in apparent response to

Plaintiffs letter to the Labor Workforce and

Development Agency concerning Google’s violations,

and as a tacit admission that its Agreement and

policies are illegal, Google quietly made a small

amendment to an additional policy in which it

purported to broaden Googlers’ right to discuss pay,

hours, or other terms of employment and to

communicate with government agencies regarding

violations of the law. Google did not inform Googlers of

this amendment.

93.

On information and belief, Google continues

to threaten employees with discharge for exercising

their rights to freedom of expression and freedom to

work. Google continues to prohibit Googlers from

speaking with lawyers or the press. Google continues to

App. 31

insist that Googlers refrain from plainly

communicating with others that Google is violating the

law or endangering consumers. Google continues to

unlawfully restrain trade through its overbroad

Confidentiality Agreement and policies.

The Secret Releases

The Harassment Release

94.

In addition, and during the time frames

relevant here, Google required all Googlers to sign an

“Employee and Temporary Workers Adult Content

Liability Release.” (The “Harassment Release.”) Doe,

Gudeman, and Correa were all required to sign, and

did sign, the Harassment Release. Both Google and

Adecco required Correa to sign the harassment release

through the July 2016 confidentiality agreement

referenced above.

95.

Consistent with Google’s confidentiality

agreements and policies, Google declared the

Harassment Release a secret, stating in italicized

letters near the top of the agreement that it was:

“Confidential: For Google Employees’ and Temporary

Workers on Assignment at Google Only.”

96.

The Harassment Release requires Googlers to

agree that, during the course of their employment,

they “may be exposed to ‘sensitive adult content,’ such

as text, descriptions, graphics, pictures, and/or files

commonly referred to as being ‘adult’ content.”

97.

The Harassment Release then requires all

Googlers to “release Google Inc. and its subsidiaries

and affiliates from any and all liability associated with

App. 32

having this material present in the work environment,

including but not limited to claims of harassment,

hostile work environment, and discrimination.”

98.

In other words, and during the relevant time

frame, Google secretly required all Googlers to agree to

preemptively release it, its subsidiaries, and its

affiliates, from “any and all liability” that may in any

way be ‘associated with’ the existence of sexual texts,

emails, descriptions, graphics, pictures, or files in

Google’s workplace.

As to Adecco

Adecco’s Confidentiality and Non-Compete

Agreement

99.

In or around August 2015, Adecco offered

Correa employment. She was assigned to work for

Google, an Adecco client.

100. As a condition of her employment, Adecco

required Correa to sign an “Employee

Acknowledgement and Confidentiality and

Non-Disclosure Agreement (“Adecco Agreement”). On

information and belief, Adecco requires all employees

throughout California to sign the Adecco Agreement.

101. The Adecco Agreement declares essentially

everything related to Correa’s employment with Adecco

“confidential.” Under the Agreement, so called

“confidential information” is “deemed to include but is

not limited to information in any format . . . which

Adecco and/or Client have not previously made

available to the public.” The Adecco Agreement does

App. 33

not contain the notice required by the Defend Trade

Secrets Act.

102. The Adecco Agreement further requires

employees to agree that they “cannot disseminate or

disclose to any third party, or use for Employee’s own

benefit, any Confidential Information relating to the

products, business, or affairs of Adecco or of Client

which is in any way acquired during or by reason of

Employee’s employment with Client.”

103. Adecco’s Agreement also contains an express

non-compete provision. It requires employees to agree

that “he/she is not to accept any position with any

Client or other entity where he/she is performing

services as an Adecco employee without the prior

written consent of Adecco.”

104. The Adecco Agreement further requires its

contingent workers to comply with the policies and

procedures of Adecco and its clients during the course

of their employment and forever after it. It states:

“Employee agrees that his/her obligations hereunder

shall continue beyond the termination of an

assignment with a Client and/or termination of

employment with Adecco. . . .”

105. Both Adecco and its clients have updated

their policies within the relevant limitations periods,

and have thus updated Correa’s agreement.

106. The Adecco Agreement

geographic or time limitation.

contains

App. 34

Adecco Commitment Sheet

107. Adecco also requires its temporary employees

throughout California, including Correa, to sign a

“Commitment Sheet.” Correa signed this Commitment

Sheet in August 2015.

108. This Commitment Sheet requires Adecco

temporary employees to “abide by the policies and

procedures contained in the Adecco Employee

Handbook.

109. The Commitment Sheet also contains a

non-disparagement clause that states: “During or after

my employment with Adecco or any Client, I will not

make any false or defamatory statements about Adecco

or its Clients.”

110. The Commitment Sheet also states that

[f]ailure to comply with these and other company

policies and procedures may result in disciplinary

action up to and including termination.”

Adecco’s Employee Handbook & Other Policies

111. Adecco also requires its temporary employees

to maintain absolute confidentiality through its

employee handbook.

112. For example, Adecco’s employee handbook –

which sets forth working conditions and wage

information – is a secret. it states that “the information

contained in this Employee Handbook is confidential

and proprietary to Adecco. The information is for

internal use only and may not be distributed outside of

Adecco.”

App. 35

113. Adecco’s handbook also prohibits its

employees from revealing that they work for an Adecco

client on their social media profiles. According to

Adecco, this includes activity like:

a. Revealing that you work for an Adecco

client (such as on a LinkedIn page).

b. Identifying yourself as an employee of an

Adecco client (even though you are).

updates.

c. Tagging or referencing clients in status

d. “Blogging” about clients (in any way).

114. In addition, Adecco prohibits its employees

from sharing any so-called “sensitive information”

related to work. This includes any “internal

communications” or even the “identities of coworkers”

or “disagreements or arguments with others.”

115. The handbook also prohibits employees from

“approach[ing] a client about full time employment.”

Rather, if an Adecco temporary employee has an

interest in full time employment with a client, it must

“let [your] Adecco representative know.” Indeed, even

after they leave a client’s employ, Adecco’s temporary

employees “are prohibited from contacting Adecco’s

clients regarding the reasons for the assignment’s

completion.”

116. Finally, the handbook makes clear that the

failure to abide by Adecco or a client’s policies and

procedures – including Adecco’s “no contact policy” with

App. 36

respect to clients – may result in disciplinary action up

to and including termination.

The “Social Event Release”

117. Adecco also requires its employees to sign two

additional releases as a condition of working for

Google. Correa, as an Adecco employee, signed these

releases in August of 2015.

118. Adecco’s “Social Event Release” acknowledges

that Adecco employees “may be invited to attend social

events, activities, and/or functions hosted or promoted

by Adecco and/or its Clients (in this case Google). This

is true, and many of these events, activities, and

functions occurred at Google or close to Google.

Contingent workers are actively encouraged to

participate in these events, activities, and functions.

119. Adecco requires Adecco employees to

preemptively waive all rights they might have against

Adecco or Google for anything “resulting from, caused

by or arising out of participation in such social events,

activities, and/or functions.” Specifically, the release

states:

I hereby waive any and all legal and/or

equitable rights or claims that I may have

to bring legal action against Adecco

and/or its Clients for damages, costs,

expenses or any of them incurred on

account of any injury, illness, and/or

death resulting from, caused by or arising

out of participation in such social events,

activities, or functions. Further, I release

Adecco and/or its Clients from any and all

App. 37

claims, demands, actions, causes of

action, damages, liabilities, judgments,

costs, and expenses, including reasonable

attorney’s fees and court costs, of every

kind and nature whatsoever incurred by

me on account of any injury, illness

and/or death resulting from, caused by, or

arising out of participation in such social

events, activities and/or functions

whether caused by negligence or

otherwise.

120. In other words, if an Adecco employee is

harassed by her boss at a social event, she cannot bring

a claim. If she is injured at social event (whether

purposefully or otherwise), she cannot bring a claim.

“The GBike Release”

121. Finally, Google maintains on its campuses

bicycles for Googlers to use (i.e., “GBikes”). The purpose

of these bicycles is to permit Googlers to more

efficiently travel between buildings on Google

campuses in order to save time, thus allowing Googlers

to work more efficiently. These bikes are used in the

course and scope of employees’ employment within the

meaning of the workers compensation laws. For

example, in California, any injury that occurs on an

employer’s premises is presumed to arise during the

course and scope of an employee’s employment.

122. Adecco, however, using language identical to

that in its Social Events Waiver, requires its

Google-based employees to waive any rights they may

have to bring a claim arising from their use of a GBike.

App. 38

The Harassment Release

123. As detailed above, Adecco also requires its

employees working as contingent workers at Google to

sign a Google confidentiality agreement that also

contains the harassment release.

Concealment of Records

124. Plaintiffs’ counsel, before filing suit, and as

part of its ongoing investigation into this case,

requested that Google and Adecco produce the

following documents concerning Plaintiffs in

accordance with the Labor Code:

a. A copy of all documents identified in

Labor Code § 1198.5 (i.e., a copy of the personnel

records that the employer maintains relating to the

employee’s performance or to any grievance concerning

the employee).

b. A copy of records required to be produced

under Labor Code § 226(b) (i.e., a copy of an employees’

records “pertaining to their employment”).

c. A copy of all documents required to be

produced under Labor Code § 432 (i.e., “if an employee

or applicant signs any instrument relating to the

obtaining or holding of employment, he shall be given

a copy of the instrument upon request.”)

125. Plaintiffs’ counsel recently learned that

Plaintiffs Correa, Gudeman, and Doe are and were

required to sign a number of documents as a condition

of obtaining or holding employment with Google and

Adecco, whether as an applicant or otherwise.

App. 39

Employees are required to “e-sign” these documents on

a regular basis as part of training or the periodic

review of policies, procedures, or other materials. As

noted above, Google also requires its employees to sign

“exit certificates” upon leaving Google’s employ. Adecco

does as well, and required that Correa sign such a

document upon her termination.

126. Despite Plaintiffs’ requests in April 2016 (as

to Doe), December 13, 2016 (as to Gudeman), and

January 3, 2017 (as to Correa) for these records,

Defendants have not produced them. They have instead

concealed their existence.

127. Plaintiffs are actively seeking to obtain these

records now.

Administrative Exhaustion

128. Plaintiffs

have

exhausted

their

administrative remedies in accordance with Labor

Code § 2699.3 et seq. with respect to the below causes

of action. The letters to the LWDA (with appropriate

redactions to prevent the unnecessary self-publication

of Doe’ identity) were sent on May 17, 2016, June 14,

2016, December 19, 2016, January 31, 2017, February

14, 2017, and October 5, 2017. They are attached as

Exhibit 1. Plaintiffs have received no response from

the LWDA to this correspondence. Defendants agreed

to waive any administrative exhaustion requirement

with respect to the October 5, 2017 LWDA notice.

129. Google has sought to “cure,” pursuant to

Labor Code § 2699.3, one identified violation with

respect to its Harassment Release. Google’s proposed

cure is insufficient. Among other things, Google has not

App. 40

advised former Google employees that its secret

“Harassment Release” is not confidential and may be

disclosed in accordance with Labor Code §232.5. Adecco

has taken no steps to cure the secrecy of the

harassment release that it requires its employees

working at Google to sign.

***

130. Because Google and Adeeco require Googlers

to waive their right to seek class-wide relief with

respect to Defendants’ illegal conduct, the only effective

remedy to address this illegal conduct and achieve

compliance with the Labor Code is the aggressive and

full imposition of penalties under the Private Attorneys

General Act. Plaintiffs, on behalf of the State and all

Googlers, seeks the below PAGA penalties in full.

CAUSES OF ACTION

AS TO GOOGLE AND ALPHABET

First Cause of Action

PAGA (with reference to Labor Code § 432.5)

Illegal Restraint of Trade -- Post-Employment

(As to Defendants Google and Alphabet

(collectively Google))

131. Non-disclosure agreements and policies affect

the State of California’s interest in promoting

commercial competition via the free flow of

information. These agreements constitute a restraint

on trade.

App. 41

132. Google’s confidentiality agreements and

policies contain no geographic or time limitation.

133. As described above, Google requires

employees to agree, in writing, to confidentiality

agreements and confidentiality policies that unlawfully

restrain trade by prohibiting the use of information

that is not confidential as a matter of law. For example,

the confidentiality agreements purport to prevent

employees from using or disclosing all of the general

skills, knowledge, acquaintances, and the overall

experience they obtained at Google. The confidentiality

agreements also purports to prevent employees from

using or disclosing general business practices. The

confidentiality agreements also purport to prevent

employees from using or disclosing customer

information that is readily available to competitors

through normal competitive means. The confidentiality

agreements and policies prohibit employees from using

their knowledge of their own and other employees’

working conditions and wages for purposes of

competition, as permitted by Labor Code. The

confidentiality agreements and policies violate

California Business & Professions Code §§ 17200 et seq.

through application of California Business &

Professions Code § 16600 and the Cartwright Act.

134. Google knows or should know that their

confidentiality agreements and policies violate the law.

135. Accordingly, Google imposes a term and

condition of employment on all Googlers that they

know are prohibited by law in violation of Labor Code

§ 432.5.

App. 42

136. Under the Private Attorneys General Act

(PAGA), the penalty for a violation of Labor Code

§ 432.5 is one hundred dollars ($100) for each aggrieved

employee per period for the initial violation and two

hundred dollars ($200) for each aggrieved employee per

pay period for each subsequent violation.”

137. Plaintiffs seek from Google and Alphabet

separately, on behalf of themselves, the state of

California, and all aggrieved employees, PAGA

penalties as set forth above for each employee per pay

period within the statutory time frame.

Second Cause of Action

PAGA (with reference to Labor Code § 432.5)

Illegal Restraint of Trade - Mobility of

Employment

(As to Defendants Google and Alphabet

(collectively Google))

138. As described above, Google requires

employees to agree in writing to confidentiality

agreements and policies that unlawfully restrain trade

by prohibiting employees from speaking with

prospective employers about information that is not

confidential as a matter, about their work at Google,

and about their wages and working conditions. Google

also requires them to inform prospective employers of

Google’s restrictions on their employees’ freedom to

work. This is a violation of California Business &

Professions Code §§ 17200 et seq. (through application

of the Business & Professions Code § 16600 and the

Cartwright Act) and California Labor Code §§ 232,

App. 43

232.5 and 1197.5(j)/(k). Google knows or should know

that their confidentiality agreements and policies

violate the law.

139. Accordingly, Google imposes a term and

condition of employment on all Googlers that they

know are prohibited by law in violation of Labor Code

§ 432.5.

140. Under the Private Attorneys General Act

(PAGA), the penalty for a violation of Labor Code

§ 432.5 “is one hundred dollars ($100) for each

aggrieved employee per period for the initial violation

and two hundred dollars ($200) for each aggrieved

employee per pay period for each subsequent violation.”

141. Plaintiffs seek from Google and Alphabet

separately, on behalf of themselves, the State of

California, and all aggrieved employees, PAGA

penalties as set forth above for each employee per pay

period within the statutory time frame.

Third Cause of Action

PAGA (with reference to Labor Code § 432.5)

Illegal Prohibition on Whistleblowing –

Communications with Outside Attorneys

(As to Google and Alphabet (collectively

Google))

142. Google requires employees to agree in writing

to confidentiality agreements and confidentiality

policies that unlawfully prohibit employees from

disclosing to attorneys (whether representing an

individual Googler or a lawyer representing

App. 44

shareholders or investigating misconduct) potential

violations of the law. Google also refuses to provide the

required notices to employees stating that employees

are entitled to communicate even trade secrets to

outside attorneys. This is a violation of public policy,

the federal Defend Trade Secrets Act, and California

Business & Professions Code §§ 17200 et seq.

Defendants know or should know that their

confidentiality agreements and policies violate the law.

143. Accordingly, Defendants impose a term and

condition of employment on all Googlers that it knows

is prohibited by law in violation of Labor Code § 432.5.

144. Under the Private Attorneys General Act

(PAGA), the penalty for a violation of Labor Code

§ 432.5 “is one hundred dollars ($100) for each

aggrieved employee per period for the initial violation

and two hundred dollars ($200) for each aggrieved

employee per pay period for each subsequent violation.”

145. Plaintiffs seeks from Google and Alphabet

separately, on behalf of himself, the state of California,

and all aggrieved employees, PAGA penalties as set

forth above for each employee per pay period within the

statutory time frame.

App. 45

Fourth Cause of Action

PAGA (with reference to Labor Code § 432.5)

Illegal Prohibition on Whistleblowing –

Communications with the Government

(As to Google and Alphabet (collectively

Google))

146. As described above, Google requires

employees to agree in writing to confidentiality

agreements and policies that unlawfully prohibit

employees from disclosing to the government potential

violations of the law. Google also refuses to provide the

required notices to employees stating they are entitled

to communicate even trade secrets to the government.

This is a violation of public policy, Rule 21F-17 of the

Securities and Exchange Commission, the federal

Defend Trade Secrets Act, California Business &

Professions Code § 17200 et seq., and California Labor

Code § 1102.5. Google is aware that their

confidentiality agreements and policies violate the law.

147. Accordingly, Google impose a term and

condition of employment on all Googlers that they

know or should know is prohibited by law in violation

of Labor Code § 432.5.

148. Under the Private Attorney General Act, the

penalty for a violation of Labor Code § 432.5 “is one

hundred dollars ($100) for each aggrieved employee per

period for the initial violation and two hundred dollars

($200) for each aggrieved employee per pay period for

each subsequent violation.”

App. 46

149. Plaintiffs seek from Google and Alphabet

separately, on behalf of themselves, the State of

California, and all aggrieved employees, PAGA

penalties as set forth above for each employee per pay

period within the statutory time frame.

Fifth Cause of Action

PAGA (with reference to Labor Code

§ 1102.5(a))

Illegal Prohibition on Whistleblowing –

Communications with the Government

(As to Google and Alphabet (collectively

Google))

150. As described above, Google has adopted and

enforced agreements, policies and practices that

prohibit employees from disclosing potential violations

of the law to the government. These policies apply even

when a Googler has reasonable cause to believe that

the at-issue information discloses a violation of state or

federal statute, or a violation of or noncompliance with

a local, state, or federal rule or regulation. This is a

violation of California Labor Code § 1102.5.

151. Under the Private Attorneys General Act

(PAGA), the penalty for a violation of Labor Code

§ 1102.5 is both $10,000 per violation and “one hundred

dollars ($100) for each aggrieved employee per period

for the initial violation and two hundred dollars ($200)

for each aggrieved employee per pay period for each

subsequent violation.”

App. 47

152. Plaintiffs seeks from Google and Alphabet

separately, on behalf of themselves, the State of

California, and all aggrieved employees, PAGA

penalties as set forth above for each employee per pay

period within the statutory time frame.

Sixth Cause of Action

PAGA (with reference to Labor Code

§ 1102.5(a))

Illegal Prohibition on Whistleblowing –

Internal Communications

(As to Google and Alphabet (collectively

Google))

153. As described above, Google has adopted and

enforced policies and practices that prohibit employees

from disclosing potential violations of the law within

Google. These policies apply even when a Googler has

reasonable cause to believe that the at-issue

information discloses a violation of state or federal

statute, or a violation of or noncompliance with a local,

state, or federal rule or regulation. Specifically,

Googlers are instructed to not communicate with their

managers and others about misconduct that may

violate the law. Such communications must instead be

deleted or never made. This is a violation of California

Labor Code § 1102.5.

154. Under the Private Attorneys General Act

(PAGA), the penalty for a violation of Labor Code

§ 1102.5 is both $10,000 per violation and “one hundred

dollars ($100) for each aggrieved employee per period

for the initial violation and two hundred dollars ($200)

App. 48

for each aggrieved employee per pay period for each

subsequent violation.”

155. Plaintiffs seek from Google and Alphabet

separately, on behalf of themselves, the state of

California, and all aggrieved employees, PAGA

penalties as set forth above for each employee per pay

period within the statutory time frame.

Seventh Cause of Action

PAGA (with reference to Labor Code § 232.5)

Illegal Prohibition on Whistleblowing about

Working Conditions

(As to Google and Alphabet (collectively

Google))

156. As described above, Google requires

employees, as a condition of employment, to refrain

from disclosing information about Google’s working

conditions. This includes disclosure or whistleblowing

concerning potentially illegal working conditions, such

as unsafe or discriminatory employment practices. This

is a violation of California Labor Code §§ 232.5(a) and

(b).

157. Under the Private Attorneys General Act

(PAGA), the penalty for a violation of Labor Code

§ 232.5 is “one hundred dollars ($100) for each

aggrieved employee per period for the initial violation

and two hundred dollars ($200) for each aggrieved

employee per pay period for each subsequent violation.”

158. Plaintiffs seeks from Google and Alphabet

separately, on behalf of themselves, the State of

App. 49

California, and all aggrieved employees, PAGA

penalties as set forth above for each employee per pay

period within the statutory time frame.

Eighth Cause of Action

PAGA (with reference to Labor Code § 232.5)

Illegal Prohibition on Disclosure of Working

Conditions in General

(As to Google and Alphabet (collectively

Google))

159. As described above, Google requires

employees, as a condition of employment, to refrain

from disclosing information about Google’s and/or

Adecco’s working conditions. This is a violation of

California Labor Code §§ 232.5(a) and (b).

160. Under the Private Attorneys General Act

(PAGA), the penalty for a violation of Labor Code

§ 232.5 is “one hundred dollars ($100) for each

aggrieved employee per period for the initial violation

and two hundred dollars ($200) for each aggrieved

employee per pay period for each subsequent violation.”

161. Plaintiffs seek from Google and Alphabet

separately, on behalf of themselves, the State of

California, and all of the aggrieved employees, PAGA

penalties as set forth above for each employee per pay

period within the statutory time frame.

App. 50

Ninth Cause of Action

PAGA (with reference to Labor Code § 232)

Illegal Prohibition on Whistleblowing about

Wages

(As to Google and Alphabet (collectively

Google))

162. As described above, Google requires

employees, as a condition of employment, to refrain

from disclosing information about the amount of his or

her wages. This includes whistleblowing, or the

disclosure of information about Google’s failure to pay

appropriate amounts of overtime and other wages in

accordance with the law. This is a violation of

California Labor Code §§ 232(a) and (b).

163. Under the Private Attorneys General Act

(PAGA), the penalty for a violation of Labor Code § 232

is “one hundred dollars ($100) for each aggrieved

employee per period for the initial violation and two

hundred dollars ($200) for each aggrieved employee per

pay period for each subsequent violation.”

164. Plaintiffs seeks from Google and Alphabet

separately, on behalf of themselves, the State of

California, and all of the aggrieved employees, PAGA

penalties as set forth above for each employee per pay

period within the statutory time frame.

App. 51

Tenth Cause of Action

PAGA (with reference to Labor Code § 232)

Illegal Prohibition on the Disclosure of Wages

in General

(As to Google and Alphabet (collectively

Google))

165. As described above, Google requires

employees, as a condition of employment, to refrain

from disclosing information about the amount of his or

her wages in general. This is a violation of California

Labor Code §§ 232(a) and (b).

166. Under the Private Attorneys General Act

(PAGA), the penalty for a violation of Labor Code § 232

is “one hundred dollars ($100) for each aggrieved

employee per period for the initial violation and two

hundred dollars ($200) for each aggrieved employee per

pay period for each subsequent violation.”

167. Plaintiffs seek from Google and Alphabet,

separately, on behalf of themselves, the State of

California, and all of the aggrieved employees, PAGA

penalties as set forth above for each employee per pay

period within the statutory time frame.

App. 52

Eleventh Cause of Action

PAGA (with reference to Labor Code

§ 1197.5(j)/(k))

Illegal Prohibition on Whistleblowing about

Wages

(As to Googly and Alphabet (collectively

Google))

168. As described above, Google prohibits

employees from disclosing, their own wages, discussing

the wages of others, or inquiring about another

employee’s wages. This includes whistleblowing or the

disclosure of information about Google’s failure to pay

appropriate amounts of overtime, and other wages in

accordance with the law. It also includes information

about gender or other disparities in pay. This is a

violation of California Labor Code § 1197.5(j)/(k).

169. Under the Private Attorneys General Act

(PAGA), the penalty for a violation of Labor Code

§ 1197.5 is “one hundred dollars ($100) for each

aggrieved employee per period for the initial violation

and two hundred dollars ($200) for each aggrieved

employee per pay period for each subsequent violation.”

170. Plaintiffs seek from Google and Alphabet

separately, on behalf of themselves, the State of

California, and all of Google’s aggrieved employees,

PAGA penalties as set forth above for each employee

per pay period within the statutory time frame.

App. 53

Twelfth Cause of Action

PAGA (with reference to Labor Code

§ 1197.5(j)/(k))

Illegal Prohibition on Discussion of Wages in

General

(As to Google and Alphabet (collectively

Google))

171. As described above, Google prohibits

employees from disclosing their own wages, discussing

the wages of others, or inquiring about another

employee’s wages in general. This is a violation of

California Labor Code § 1197.5(j)/(k).

172. Under the Private Attorneys General Act, the

penalty for a violation of Labor Code § 1197.5 is “one

hundred dollars ($100) for each aggrieved employee per

period for the initial violation and two hundred dollars

($200) for each aggrieved employee per pay period for

each subsequent violation.”

173. Plaintiff seek from Google and Alphabet

separately, on behalf of themselves, the state of

California, and all aggrieved employees, PAGA

penalties as set forth above for each employee per pay

period within the statutory time frame.

App. 54

Thirteenth Cause of Action

PAGA (with reference to Labor Code § 98.6)

Illegal Threats of Discharge for Engaging in

Lawful Conduct during Non-Work Hours

(As to Google and Alphabet (collectively

Google))

174. As described above, Google threatens to

discharge employees for engaging in lawful conduct

during non-work hours. This lawful conduct includes

the exercise of constitutional rights such as freedom of

speech, freedom to speak the press, and economic

liberty under both the California and federal

constitutions.

175. Labor Code § 98.6 provides for a civil penalty

under PAGA of $10,000 per employee to be paid

directly to the employee for these violations.

176. In addition to the PAGA penalty described

above, under the Private Attorneys General Act, an

additional civil penalty for a violation of Labor Code

§ 98.6 is “one hundred dollars ($100) for each aggrieved

employee per period for the initial violation and two

hundred dollars ($200) for each aggrieved employee per

pay period for each subsequent violation.”

177. Plaintiffs seek from Google and Alphabet

separately, on behalf of themselves, the state of

California, and all of Google’s aggrieved employees,

PAGA penalties as set forth above for each employee

per pay period within the statutory time frame.

App. 55

Fourteenth Cause of Action

PAGA (with reference to Labor Code § 96(k))

Illegal Prohibition on Engaging in Lawful

Conduct during Non-Work Hours

178. As described above, Google prohibits

employees from engaging in lawful conduct during

non-work hours. This lawful conduct includes the

exercise of constitutional rights such as freedom of

speech, freedom to speak the press, and economic

liberty under both the California and federal

constitutions. The lawful conduct also includes

engaging in conduct protected by the Labor Code with

respect to disclosing information about wages and

working conditions and illegal conduct.

179. Under the Private Attorneys General Act, the

penalty for a violation of Labor Code § 96(k) is “one

hundred dollars ($100) for each aggrieved employee per

period for the initial violation and two hundred dollars

($200) for each aggrieved employee per pay period for

each subsequent violation.”

180. Plaintiffs seek from Google and Alphabet

separately, on behalf of themselves, the state of

California, and all aggrieved employees, PAGA

penalties as set forth above for each employee per pay

period within the statutory time frame.

App. 56

Fifteenth Cause of Action

PAGA (with reference to Labor Code § 232.5)

(Regarding Working Conditions Set Forth in

Policies)

(As to Google and Alphabet (collectively

Google))

181. As described above, Google prohibits

disclosing information about their working conditions

by declaring its workplace policies “confidential” and

“for internal use only.” Indeed, and notwithstanding its

inadequate cure efforts, Google even declares its

Harassment Release “confidential.” This is a violation

of Labor Code §§ 232.5(a) and (b).

182. Under the Private Attorneys General Act, the

penalty for a violation of Labor Code § 96(k) is “one

hundred dollars ($100) for each aggrieved employee per

period for the initial violation and two hundred dollars

($200) for each aggrieved employee per pay period for

each subsequent violation.”

183. Plaintiffs seeks from Google and Alphabet,

separately, on behalf of themselves, the state of

California, and all of the aggrieved employees, PAGA

penalties as set forth above for each employee per pay

period within the statutory time frame.

App. 57

CAUSES OF ACTION

AS TO ADECCO

Sixteenth Cause of Action

PAGA (Incorporation of Claims against Google)

184. As described above, Adecco requires its

employees to abide by the policies and practices of its

clients, including Google. Adecco is thus equally liable

under PAGA with respect to Adecco aggrieved

employees working at Google as to the application of

Google policies and practices to them. Accordingly,

Plaintiff Correa also incorporates and alleges that

Adecco is liable under PAGA for causes of action five

through fifteen as applied to Google contingent workers

currently or formerly employed by Adecco.

185. Plaintiff Correa thus seeks from Adecco, on

behalf of herself, the state of California, and all of the

aggrieved employees, PAGA penalties as set forth

above for each Adecco employee also currently or

formerly employed by Google, per pay period, within

the statutory time frame.

Seventeenth Cause of Action

PAGA with reference to Labor Code §§ 96(k)

and 98.6)

(As To Adecco)

186. As described above, Adecco – through its

confidentiality agreements and policies – prohibits

aggrieved employees throughout California, including

Correa, from exercising their state and federal

App. 58

constitutional right to free speech during non-work

hours and off the employer’s premises. Adecco prohibits

aggrieved employees from, among other things:

a. Stating for whom they work on social

media such as LinkedIn.

client.

b. Commenting on Adecco or any Adecco

c. Discussing disagreements with others or

even the names of their co-workers.

d. Talking with friends about their workday.

e. Reporting suspected violations of the law

to the government or to an attorney, including

whistleblowing about securities law violations or false

claims act violations.

d. Talking to the press about Adecco or any

Adecco client.

e. Approaching an Adecco client for a

full-time job.

f. Asking an Adecco client why their work

assignment ended.

187. None of the above examples evidences

conduct that is arguably protected or prohibited by the

National Labor Relations Act.

188. Plaintiff disputes that the Court’s “crucial

element” test for Garmon preemption is the correct

one. Nevertheless, the Court can resolve whether

Adecco’s agreements and policies have the impact

referenced above (whether in whole or in part), and

App. 59

thus violate Labor Code §§ 96(k) and 98.6, without

deciding a “crucial element” of a claim arguably within

the jurisdiction of the NLRB: I.e., whether the

agreements or policies restrict current employees in

the exercise of their § 7 rights under the National

Labor Relations Act.

189. Plaintiff Correa thus seeks from Adecco, on

behalf of herself, the state of California, and all of the

aggrieved employees, PAGA penalties for each

employee currently or formerly employed by Adecco in

California, per pay period, within the statutory time

frame.

Eighteenth Cause of Action

PAGA with reference to Labor Code §§ 232 and

1197.5(j)/(k))

(As To Adecco)

190. As described above, Adecco prohibits

aggrieved employees, including Correa, throughout

California from disclosing information about their own

wages or the wages of others. Among other things,

Adecco’s confidentiality agreements and policies

prohibit current and former employees from:

a. Disclosing wage information for the

purpose of seeking new work or negotiating a higher

salary on an individual basis both during and following

employment.

c. Disclosing wage information postemployment for the purpose of recruiting employees

from their former employer.

App. 60

b. Disclosing wage information for the

purpose of whistleblowing to an attorney or to the

government about illegal wage and hour practices.

d. Disclosing wage information for other

reasons having nothing to do with the National Labor

Relations Act, including (but not limited to) assuring

worried parents that they can afford to pay the rent.

191. None of the above examples evidences

conduct that is arguably protected or prohibited by the

National Labor Relations Act.

192. Plaintiff disputes that the Court’s “crucial

element” test for Garmon preemption is the correct

one. Nevertheless, the Court can resolve whether

Adecco’s agreements and policies have the impact

referenced above (whether in whole or in part), and

thus violate Labor Code § 232.5, without deciding a

“crucial element- of a claim arguably within the

jurisdiction of the NLRB: I.e., whether the agreements

or policies restrict current employees in the exercise of

their § 7 rights under the National Labor Relations

Act.

193. Plaintiff Correa thus seeks from Adecco, on

behalf of herself, the state of California, and all of the

aggrieved employees, PAGA penalties for each

employee currently or formerly employed by Adecco in

California, per pay period, within the statutory time

frame.

App. 61

Nineteenth Cause of Action

PAGA (with reference to Labor Code §§ 232.5)

(As To Adecco)

194. As described above, Adecco prohibits

aggrieved employees, including Correa, throughout

California from disclosing information about their

working conditions to anyone. Among other things,

Adeeco’s confidentiality agreements and policies

prohibit current and former employees from, among

other things:

a. Disclosing information about working

conditions for the purpose of seeking different

employment (e.g., to explain an employee’s reason for

seeking a new job, or to discuss one’s accomplishments

on a LinkedIn resume).

b. Disclosing information about working

conditions post-employment for the purpose of

competing against Adecco or its clients for employees

by comparing or contrasting working conditions at

competing firms.

c. Disclosing working conditions for the

purpose of whistleblowing to an attorney or to the

government about illegal employment practices.

d. Disclosing working conditions for other

reasons having nothing to do with the National Labor

Relations Act, including (but not limited to)

commiserating with a friend about the long hours one

is required to work.

App. 62

195. None of the above examples evidences

conduct that is arguably protected or prohibited by the

National Labor Relations Act.

196. Plaintiff disputes that the Court’s “crucial

element” test for Garmon preemption is the correct

one. Nevertheless, the Court can resolve whether

Adecco’s agreements and policies have the impact

referenced above, and thus violate Labor Code §§ 232.5,

without deciding a “crucial element” of a claim

arguably within the jurisdiction of the NLRB: I.e.,

whether the agreements or policies restrict current

employees in the exercise of their § 7 rights under the

National Labor Relations Act.

197. Plaintiff Correa thus seeks from Adecco, on

behalf of herself, the state of California, and all of the

aggrieved employees, PAGA penalties for each Adecco

employee also currently or formerly employed by

Adecco, per pay period, within the statutory time

frame.

Twentieth Cause of Action

PAGA with reference to Labor Code

§§ 1102.5(a))

(As To Adecco)

198. As described above, Adecco prohibits

aggrieved employees, including Correa, throughout

California from reporting reasonably suspected

violations of the law to the government or to an

attorney. Among other things, Adecco’s confidentiality

agreements and policies prohibit current and former

employees from, among other things:

App. 63

a. Reporting securities law violations.

b. Reporting false claims act violations.

c. Reporting violations of the Foreign

Corrupt Practices Act.

d. Reporting violations of other state and

federal laws completely unrelated to the terms and

conditions of an employee’s employment.

e. Reporting violations of state and federal

laws relating to an employee’s individual concerns

about compliance with employment laws.

199. None of the above examples evidences

conduct that is arguably protected or prohibited by the

National Labor Relations Act.

200. Plaintiff disputes that the Court’s “crucial

element” test for Garmon preemption is the correct

one. Nevertheless, the Court can resolve whether

Adecco’s agreements and policies have the impact

referenced above (whether in whole or in part), and

thus violate Labor Code § 1102.5(a) without deciding a

“crucial element” of a claim arguably within the

jurisdiction of the NLRB: I.e., whether the agreements

or policies restrict current employees in the exercise of

their § 7 rights under the National Labor Relations

Act.

201. Plaintiff Correa thus seeks from Adecco, on

behalf of herself, the state of California, and all of the

aggrieved employees, PAGA penalties for each

employee currently or formerly employed by Adecco in

App. 64

California, per pay period, within the statutory time

frame.

Twenty-First Cause of Action

PAGA (with reference to Labor Code § 432.5)

(As To Adecco)

202. As described above, Adecco requires

aggrieved employees to agree in writing to terms and

conditions that it knows is prohibited by law. Adecco

requires its employees to agree to a confidentiality

agreement and other writings that, among other

things.

a. Fails to include the notice required by the

Defend Trade Secrets Act.

b. Prohibits employees from reporting

securities law violations, in violation of SEC Rule

21F-17.

c. Prohibits employees from reporting

suspected violations of the law, in violation of Labor

Code § 1102.5, public policy, and numerous other

whistleblower laws. Prohibits employees seeking

employment with an Adecco client without Adecco’s

consent.

d. Prohibits employees from seeking full time

work with an Adecco client.

e. Prohibits employees from asking an Adecco

client why their assignment ended.

f. Prohibits employees from ever using the

general skills, knowledge, acquaintances, and the

App. 65

overall experience they obtain at Adecco and its clients

in practicing their trade.

f. Prohibits employees from ever using

customer and other information learned at Adecco or

its clients in practicing their trade even when that

information is readily available to competitors through

normal competitive means.

g. Prohibits employees from disclosing

information about their own or other employees’ wages

for any reason (including in furtherance of practicing

their trade).

h. Prohibits employees from disclosing

information about Adecco and their clients’ working

conditions for any reason (including in furtherance of

practicing their trade).

i. Prohibits employees from identifying their

joint employer (i.e., Adecco’s clients) on their LinkedIn

profile and other social media.

j. Prohibits employees from engaging in

lawful conduct during non-work hours in violation of

Labor Code § 96(k) and 98.6 by, for example, “blogging”

about Adecco or its clients.

203. Through this conduct (among other things),

Adecco knowingly requires employees to sign a writing

that violates numerous laws, including the Cartwright

Act, Business & Professions Code § 16600, the Defend

Trades Secrets Act, the rules of the Securities and

Exchange Commission, the California Constitution’s

liberty of speech clause, the Labor Code sections

App. 66

referenced above, and Business and Professions Code

§ 17200 et seq.

204. None of the above examples evidences

conduct that is arguably protected or prohibited by the

National Labor Relations Act.

205. Plaintiff disputes that the Court’s “crucial

element” test for Garmon preemption is the correct

one. Nevertheless, the Court can resolve whether

Adecco’s writings have the impact referenced above

(whether in whole or in part), and thus violate Labor

Code § 432.5 without deciding a “crucial element” of a

claim arguably within the jurisdiction of the NLRB:

I.e., whether the agreements or policies restrict current

employees in the exercise of their § 7 rights under the

National Labor Relations Act.

206. Plaintiff Correa thus seeks from Adecco, on

behalf of herself, the state of California, and all of the

aggrieved employees, PAGA penalties for each

employee also currently or formerly employed by

Adecco in California, per pay period, within the

statutory time frame.

Twenty-Second Cause of Action

Unfair Competition – Business & Professions

Code § 17200

(As To Adecco)

207. As described above, Adecco’s agreements,

policies, and practices with respect to its

California-based temporary employees violate

numerous laws and constitute unfair and unlawful

App. 67

business practices in violation of California Business &

Professions Code § 17200 et seq.

208. Plaintiff Correa remains subject to Adecco’s

unlawful agreements.

209. Plaintiff Correa seeks a public injunction

against Adecco prohibiting it from enforcing its

confidentiality agreement and other writings to the

extent they are unlawful.

210. Plaintiff Correa further seeks an affirmative

public injunction in which Adecco is required to inform

all its former and current employees that it will not

enforce its confidentiality agreements or other writings

and that these former and current employees are

permitted to (among other things):

a. Work for an Adecco client without seeking

Adecco’s permission.

b. Approach an Adecco client about full time

work without notifying Adecco.

c. Ask an

assignment ended.

Adecco

client

why

their

d. Use and disclose the general skills,

knowledge, acquaintances, and the overall experience

they obtain at Adecco and its clients in working for

other employers or themselves.

e. Use and disclose the customer and other

information learned at Adecco or its clients in

practicing their trade when that information is readily

available to competitors through normal competitive

means.

App. 68

f. Discuss Adecco and its clients during

non-work hours and away from their employer’s

premises, except when such discussions would reveal

trade secrets.

g. Identify Adecco clients in their social

media profiles.

h. Use and disclose information about

working conditions and wages.

i. Disclose trade secrets in accordance with

the Defend Trade Secrets Act.

j. Report suspected violations of the law,

including securities law violations.

k. Engage in other conduct protected by

California law.

211. None of the above examples evidences

conduct that is arguably protected or prohibited by the

National Labor Relations Act.

212. Plaintiff disputes that the Court’s “crucial

element” test for Garmon preemption is the correct

one. Nevertheless, the Court can resolve all or part

Plaintiff Correa’s unfair competition claim without

deciding a “crucial element” of a claim arguably within

the jurisdiction of the NLRB: I.e., whether the

agreements or policies restrict current employees in

the exercise of their § 7 rights under the National

Labor Relations Act.

App. 69

CAUSES OF ACTION

AS TO ALL DEFENDANTS

Twenty-Third Cause of Action

PAGA (with reference to Labor Code § 432.5)

(Illegal Releases)

(As to all Defendants)

213. California law prohibits agreements

requiring employees to release potential claims as a

condition of employment. For example:

a. California Civil Code § 1668 states all

contracts which exempt a person from responsibility for

willfully injuring another violate the law.

b. California Civil Code § 3513 states that a

law established for a public reason cannot be

contravened by private agreement.

c. California Labor Code § 5000 states that

no contract, rule, or regulation can exempt an employer

from liability under California’s workers compensation

laws.

214. As described above, Defendants require

employees to release non-waivable rights as a condition

of working for Defendants, including their rights under

Title VII, FEHA, and California’s workers

compensation laws. Defendants know or should know

that these releases violate the law, yet they require

them anyway.

App. 70

215. Accordingly, Defendants impose a term and

condition of employment on all employees that they

know or should know is prohibited by law in violation

of Labor Code § 432.5.

216. Under the Private Attorneys General Act

(PAGA), the penalty for a violation of Labor Code

§ 432.5 “is one hundred dollars ($100) for each

aggrieved employee per period for the initial violation

and two hundred dollars ($200) for each aggrieved

employee per pay period for each subsequent violation.”

217. Plaintiffs seek from each Defendant

separately, on behalf of themselves, the State of

California, and all aggrieved employees, PAGA

penalties as set forth above for each employee per pay

period within the statutory time frame.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment against

Defendants as follows:

Full and complete civil penalties for each

separate violation of PAGA in accordance with the

Private Attorneys General Act.

Attorneys’ fees and costs under PAGA, CCP

§ 1021.5, or any other applicable law or doctrine.

Interest on penalties.

A public injunction.

just.

All other relief the Court deems proper and

App. 71

Dated: November 21, 2017

BAKER CURTIS & SCHWARTZ P.C.

By: /s/

Chris Baker

Attorneys for Plaintiffs

JOHN DOE, DAVID GUDEMAN

AND PAOLA CORREA

JURY TRIAL DEMANDED

Plaintiffs hereby demand a trial by jury.

Dated: November 21, 2017

BAKER CURTIS & SCHWARTZ P.C.

By: /s/

Chris Baker

Attorneys for Plaintiffs

JOHN DOE, DAVID GUDEMAN

AND PAOLA CORREA

[*** Attachments not included ***]

App. 72

APPENDIX 2

U.S. Const. Amend. XIV, § 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they reside.

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

18 U.S. Code § 1833 - Exceptions to prohibitions

(a) In General.—This chapter does not prohibit or

create a private right of action for—

(1) any otherwise lawful activity conducted by a

governmental entity of the United States, a State,

or a political subdivision of a State; or

(2) the disclosure of a trade secret in accordance

with subsection (b).

(b) Immunity From Liability for Confidential

Disclosure of a Trade Secret to the Government or in a

Court Filing.—

(1) Immunity.—An individual shall not be held

criminally or civilly liable under any Federal or

State trade secret law for the disclosure of a trade

secret that—

App. 73

(A) is made—

(i) in confidence to a Federal, State, or local

government official, either directly or

indirectly, or to an attorney; and

(ii) solely for the purpose of reporting or

investigating a suspected violation of law; or

(B) is made in a complaint or other document

filed in a lawsuit or other proceeding, if such

filing is made under seal.

(2) Use of trade secret information in

anti-retaliation lawsuit.—An individual who files a

lawsuit for retaliation by an employer for reporting

a suspected violation of law may disclose the trade

secret to the attorney of the individual and use the

trade secret information in the court proceeding, if

the individual—

(A) files any document containing the trade

secret under seal; and

(B) does not disclose the trade secret, except

pursuant to court order.

(3) Notice.—

(A) In general.—

An employer shall provide notice of the

immunity set forth in this subsection in any

contract or agreement with an employee that

governs the use of a trade secret or other

confidential information.

App. 74

(B) Policy document.—

An employer shall be considered to be in

compliance with the notice requirement in

subparagraph (A) if the employer provides a

cross-reference to a policy document provided to

the employee that sets forth the employer’s

reporting policy for a suspected violation of law.

If an employer does not comply with the notice

requirement in subparagraph (A), the employer

may not be awarded exemplary damages or

attorney fees under subparagraph (C) or (D) of

section 1836(b)(3) in an action against an

employee to whom notice was not provided.

(D) Applicability.—

This paragraph shall apply to contracts and

agreements that are entered into or updated

after the date of enactment of this subsection.

(4) Employee defined.—

For purposes of this subsection, the term

“employee” includes any individual performing

work as a contractor or consultant for an employer.

(5) Rule of construction.—

Except as expressly provided for under this

subsection, nothing in this subsection shall be

construed to authorize, or limit liability for, an act

that is otherwise prohibited by law, such as the

unlawful access of material by unauthorized means.

App. 75

17 CFR § 240.21F-17 - Staff communications

with individuals reporting possible securities

law violations.

§ 240.21F-17 Staff communications with individuals

reporting possible securities law violations.

(a) No person may take any action to impede an

individual from communicating directly with the

Commission staff about a possible securities law

violation, including enforcing, or threatening to

enforce, a confidentiality agreement (other than

agreements dealing with information covered by §

240.21F-4(b)(4)(i) and § 240.21F-4(b)(4)(ii) of this

chapter related to the legal representation of a client)

with respect to such communications.

(b) If you are a director, officer, member, agent, or

employee of an entity that has counsel, and you have

initiated communication with the Commission relating

to a possible securities law violation, the staff is

authorized to communicate directly with you regarding

the possible securities law violation without seeking

the consent of the entity's counsel.

App. 76

Cal. Bus. & Prof. Code §§ 16720-16728

Section 16720 - Trust

A trust is a combination of capital, skill or acts by two

or more persons for any of the following purposes:

(a) To create or carry out restrictions in trade or

comme

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.