Preview
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Electronically
LATHAM & WATKINS LLP
by Superior Court of California
Linda M. Inscoe (Bar No. 125194) County of San Mateo
linda.inscoe@1lw.com
Christopher Campbell (Bar No. 254776)
christopher.campbell@ lw.com on: 11/17/2017
Aaron T. Chiu (Bar No. 287788)
aaron.chiu@lw.com Mia Marlowe
Christina P. Teeter (Bar No. 301569) Deputy Clerk
christina.teeter@lw.com
505 Montgomery Street, Suite 2000
San Francisco, California 94111-6538
Telephone: +1.415.391.0600
Facsimile: +1.415.395.8095
Attorneys for Defendant
ADECCO USA, INC.
SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF SAN MATEO
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RACHEL MONIZ, on behalf
of the State of CASE NO. 17-CIV-01736
13 California and aggrieved employees,
Complaint Filed: April 18, 2017
14 Plaintiff, Trial Date: None Set
15 Vv, DECLARATION OF LINDA M. INSCOE IN
SUPPORT OF DEFENDANT ADECCO USA,
16 ADECCO USA, INC. and DOES 1-50, INC.’S REQUEST FOR JUDICIAL NOTICE
inclusive, IN SUPPORT OF DEFENDANT ADECCO
17 USA, INC.’S NOTICE OF MOTION AND
Defendants. MOTION TO RENEW DEFENDANT’S
18 DEMURRER TO PLAINTIFF RACHEL
MONIZ’S COMPLAINT PURSUANT TO
19 CCP § 1008(b), OR ALTERNATIVELY
ABATE OR STAY PROCEEDINGS
20
Date: December 12, 2017
21 Time: 2:00 P.M.
Place: Department 2 For All Purposes
22 Judge: Hon. Marie S. Weiner
23 [Defendant's Motion for Renewal of Defendant’s
Demurrer to Plaintiffs Complaint, Request for
24 Judicial Notice, and [Proposed] Order filed
concurrently herewith]
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LATHAMsWATKINS
ATTORNEYS AT LAW INSCOE DECL. ISO DEFENDANT'S.
‘SAN FRANCISCO REQUEST FOR JUDICAL NOTICE,
CASE NO. 17-CIV-01736
I, Linda M. Inscoe, declare as follows:
1 lam an attorney duly licensed to practice before all the courts of the State of
California. I am a partner with the law firm of Latham & Watkins LLP, counsel of record for
Defendant Adecco USA, Inc. (“Adecco”) in the above-captioned matter. I am personally
familiar with the facts set forth herein, and if called upon to do so, I could and would testify
completely thereto. I submit this declaration in support of Adecco’s Request for Judicial Notice
in Support of Defendant Adecco USA, Inc.’s Notice of Motion and Motion to Renew
Defendant’s Demurrer to Plaintiff Rachel Moniz’s Complaint Pursuant to CCP § 1008(b), or in
the Alternative, to Abate or Stay Proceedings.
10 2 Attached hereto as Exhibit A is a true and correct copy of the Fourth Amended
11 Complaint filed by the plaintiffs in Doe v. Google, Inc., Case No. CGC-16-556034 (S.F. Super.
12 Ct.), dated September 25, 2017.
13 3 Attached hereto as Exhibit B is a true and correct copy of the Order Sustaining
14 Adecco’s Demurrer to the Fourth Amended Doe Complaint in Doe v. Google, Inc., Case No.
15 CGC-16-556034 (S.F. Super. Ct.), dated November 6, 2017.
16 4. Attached hereto as Exhibit C is a true and correct copy of the Third Amended
17 Complaint in Doe v. Google, Inc., Case No. CGC-16-556034 (S.F. Super. Ct.), dated April 28,
18 2017.
19 5 Attached hereto as Exhibit D is a true and correct copy of the Order Sustaining in
20 Part with Leave to Amend Adecco’s Demurrer to Third Amended Complaint in Doe v. Google,
21 Inc., Case No. CGC-16-566034 (S.F. Super. Ct.), dated September 14, 2017.
22 6. Attached hereto as Exhibit E is a true and correct copy of Plaintiff Rachel
23 Moniz’s Response in Opposition to Adecco’s Petition for Coordination, Adecco Confidentiality
24 Agreement Cases, J.C.C.P. No. 4939 (S.F. Super. Ct. Oct. 10, 2017).
25 //
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LATHAMsWATKINS
ATTORNEYS AT LAW INSCOE DECL. ISO DEFENDANT'S.
‘SAN FRANCISCO REQUEST FOR JUDICAL NOTICE,
CASE NO. 17-CIV-01736
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed this 17" day of November, 7 2017 at San Francisco,
California.
inda M. Inscoe
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LATHAMeWATKINS: INSCOE DECL. ISO DEFENDANT'S
ATTORNEYS AT LAW REQUEST FOR JUDICAL NOTICE
‘SAN FRANCISCO CASE NO. 17-CIV-01736
INDEX OF EXHIBITS
jem | orscmmoy
Fourth Amended Complaint, Doe v. Google, Inc., Case No.
| man
CGC-16-556034 (S.F. Super. Ct. Sept. 25, 2017
Order Sustaining Adecco’s Demurrer to the Fourth
51
Amended Doe Complaint, Doe v. Google, Inc., Case No.
CGC-16-556034 (S.F. Super. Ct. Nov. 6, 2017)
Third Amended Complaint, Doe v. Google, Inc., Case No.
CGC-16-556034 (S.F. Super. Ct. Apr. 28, 2017)
59
9
10 Order Sustaining in Part with Leave to Amend Adecco’s
Demurrer to Third Amended Complaint, Doe v. Google, 107
ll Inc., Case No. CGC-16-566034 (S.F. Super. Ct. Sept. 14,
12
2017)
13 Plaintiff Rachel Moniz’s Response in Opposition to
Adecco’s Petition for Coordination, Adecco Confidentiality 113
14 Agreement Cases, J.C.C.P. No. 4939 (S.F. Super. Ct. Oct.
10, 2017),
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LATHAMsWATKINS
ATTORNEYS AT LAW INSCOE DECL. ISO DEFENDANT'S.
‘SAN FRANCISCO REQUEST FOR JUDICAL NOTICE,
CASE NO. 17-CIV-01736
EXHIBIT A
CHRIS BAKER, State Bar No. 181557
cbaker@bakerlp.com
DEBORAH SCHWARTZ, State Bar No. 208934 ELECTRONICALLY
dschwartz@bakerlp.com FILED
BAKER CURTIS & SCHWARTZ, P.C. Superior Court of California,
County of San Francisco
44 Montgomery Street, Suite 3520
San Francisco, CA 94104 09/25/2017
Clerk of the Court
Telephone: (415) 433-1064 BY:JUDITH NUNEZ
Fax: (415) 366-2525 Deputy Clerk
Attorneys for Plaintiffs
JOHN DOE, DAVID GUDEMAN
AND PAOLA CORREA
10 SUPERIOR COURT OF CALIFORNIA
ll COUNTY OF SAN FRANCISCO
12
13 JOHN DOE, DAVID GUDEMAN, and Case No. CGC-16-556034
PAOLA CORREA on behalf of the State of
14 California and aggrieved employees, FOURTH AMENDED COMPLAINT
PURSUANT TO THE PRIVATE
15 Plaintiff, ATTORNEYS GENERAL ACT
vs.
16
DEMAND FOR JURY TRIAL
17 GOOGLE, INC., ALPHABET, INC.,
ADECCO USA INC., ADECCO GROUP Dept: 304
18 NORTH AMERICA and ROES |through 10, Judge Curtis Karnow
19 Defendants. Complaint Filed: December 20, 2016
Trial Date: Not Set
20
21
IMPORTANT NOTES
22
1 In this Fourth Amended Complaint, Plaintiffs Doe, Gudeman, and Correa re-
23
24 allege the causes of action | through 17 against Google and Alphabet that the Court dismissed
without leave to amend. For clarity and organizational purposes, these causes of action are now
25
numbered | through 15. Correa also re-alleges the 18" cause of action as to Adecco with respect
26
to the GBike and Social Event Releases that the Court dismissed without leave to amend. This is
27
now cause of action 23.
28
FOURTH AMENDED PAGA COMPLAINT Exhibit A, Page 5
2. 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 June 27, 2017 Order, as well as the
September 14, 2017 Order. See, e.g., County of Santa Clara v. Atlantic Richfield Co. (2006) 137
Cal.App.4"" 292, 312 (“where the plaintiff chooses to amend, any error in the sustaining of the
demurrer is ordinarily waived”); Miletak y. All State Ins. Co. (N.D. Cal 2007) 2007 WL
7061350, *3-5 (stating that “under Ninth Circuit precedent, a plaintiff 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-
10 complaint,” without explaining if this is on a per party basi and without explaining the impact
ll of a demurrer sustained with leave to amend as to all causes of action but one).
12 3 In addition, Adecco demurred as to all Plaintiffs. In its September 14, 2017
13 Order, the Court seemingly granted a// Plaintiffs the right to amend as to causes of action 1
14 through 17 as to Adecco. The Court further opined that “perhaps an amendment may take
15 Correa out of the NLRA’s definition of an “employee.”
16 4 As detailed below, all Plaintiffs can easily amend (and do amend) to allege that
17 neither Doe, Gudeman, nor Correa fall even arguably within the definition of “employee” under
18 the NLRA.
19 5 Plaintiffs also add allegations concerning Defendants’ concealment of documents
20 that Defendants required Plaintiffs to sign that likely contain illegal terms. These documents
21 may prove relevant to any statutes of limitations defenses that might arise. Once Plaintiffs obtain
22 those documents, they may seek further leave to amend.
23 6 Finally Plaintiff Correa also amends to add a cause of action under the Unfair
24 Competition Law for a public injunction prohibiting Adecco from enforcing certain unlawful
25 employment practices at issue in this case.
26 INTRODUCTION AS TO GOOGLE
27 7 Google’s motto is “don’t be evil.” Google’s illegal confidentiality agreements,
28 policies, and practices fail this test.
7 22 =
FOURTH AMENDED PAGA COMPLAINT
Exhibit A, Page 6
8 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 litigation or sought by the government. The policies prohibit
Googlers from telling a potential employer how much money they make, or what work they
10 performed, when searching for a different job. The policies prohibit Googlers from using or
ll disclosing all of their skills, knowledge, acquaintances, and their overall experience at Google
12 when working for a new employer. The policies prohibit Googlers from speaking to the
13 government, attorneys, or the press about wrongdoing at Google. The policies even prohibit
14 Googlers from speaking to their spouse or friends about whether they think their boss could do a
15 better job.
16 9 Google’s unlawful confidentiality policies are contrary to the California Labor
17 Code, contrary to public policy, and contrary to the interests of the State of California. The
18 unnecessary and inappropriate breadth of the policies are intended to control Google’s former
19 and current employees, limit competition, infringe on constitutional rights, and prevent the
20 disclosure and reporting of misconduct. The policies are wrong and illegal.
21 10. This case does not concern Google’s trade secrets, consumer privacy, or
22 information that should not be disclosed under the law (such as material non-public information
23 under the securities laws). This case instead concerns Google's use of confidentiality and other
24 agreements and policies for illegal and improper purposes. Google defines essentially
25 everything as “confidential information.” However, a publicly-traded company with Google’s
26 reach, power, and close ties to the federal government cannot be permitted to declare to its
27 workforce that everything it does and everything that happens — from the location of a water
28 cooler to serious violations of the law — is “confidential” upon pain of termination and the threat
-3-
FOURTH AMENDED PAGA COMPLAINT
Exhibit A, Page 7
of ruinous litigation.
INTRODUCTION AS TO ADECCO
ll. Defendant Adecco is 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.
12. 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
10 abide by these illegal agreements, policies and practices during their employment and forever
ll after.
12 13. This is against the law.
13 PARTIES
14 Plaintiffs
15 14. John Doe resides in San Francisco. From July 2014 to April 2016, Doe worked
16 as an “LS” Product Manager for Google at one of Alphabet’s “other bets” companies called Nest
17 Even then, he was a high-level employee, only three steps removed from Alphabet CEO Larry
18 Page.
19 15. In April 2016, Doe was unceremoniously terminated from Google after being
20 falsely accused of disclosing certain memes concerning Nest working conditions to the press.
21 He did not.
22 16. Doe uses a pseudonym because he should not be required to self-publish his
23 name, which would then be tied to Google’s defamatory statements about him, in order to
24 enforce rights under the Labor Code. Moreover, as the allegations set forth below make clear,
25 Google is extraordinary intolerant of individuals who disclose information about working
26 conditions (which this lawsuit does), and Doe rightfully fears retaliation.
27 17. Doe, as an L5 Product Manager, was a supervisory and/or managerial employee
28 of Google outside the coverage of the National Labor Relations Act. Google contends that Doe,
-4-
FOURTH AMENDED PAGA COMPLAINT
Exhibit A, Page 8
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 LS 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
LS Product Manager.
10 18. Regardless, as an LS Product Manager, Doe was inarguably a
ll managerial/supervisory employee of Google outside the protection of the National Labor
12 Relations Act.
13 19. Perhaps more importantly, in June 2016, Google reinstated Doe and promoted
14 him to the previously-promised position of an L6 Product Manager. He thus became an even
15 higher-level and more important employee of Google. Among other things, Google describes
16 the L6 Product Manager role thus:
17
[L6 Product Manager] owns a coherent portfolio of projects and is
18 accountable for the entire product life cycle and identifying new
areas of investment (new projects) for the product. Product
19 decisions are highly complex and have long-term strategic impact
on the overall Product Area, affecting all Customer’ constituents.
20
[L6 Product Manager] is the entrepreneurial negotiator for their
21
team. They can identify, negotiate, and secure resources needed for
22 a plan they define. They understand the priorities of their extended
team (i.¢., their Product/PA) and how to operate effectively within
23 them. They proactively propose trade-offs in resourcing or scope
and identify ways for disparate teams to work together to achieve a
24 common goal.
25
[L6 Product Manager] regularly identifies new product
26 opportunities and is highly adept at building consensus for and
support of those ideas. They are a highly effective and respected
27 decision maker on their project portfolio, recognized as a product
expert in that area. PM is skilled at working the whole team
28
-5-
FOURTH AMENDED PAGA COMPLAINT
Exhibit A, Page 9
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.
20. 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.
10 21. Doe is an “aggrieved employee” under PAGA, which applies to employees, as
ll well as to supervisors and managers outside the coverage of the NLRA.
12 22. David Gudeman resides in South San Francisco. From November 2013 to
13 December 2016 Gudeman worked for Google as a software engineer. In early December 2016,
14 Google terminated Gudeman’s employment, stating that he was “unable to meet expectations for
15 a Software Engineer III.” Gudeman disagrees with this claim. Gudeman was not terminated for
16 conduct that is arguably protected or prohibited by the National Labor Relations Act. Gudeman
17 was also not arguably terminated as a consequence of, or in connection with, a labor dispute.
18 23. Gudeman seeks to write a book about Google. However, as a former employee, he
19 remains subject to Google’s unlawful confidentiality agreement as well as its unlawful policies
20 and practices (which are incorporated by reference into the confidentiality agreement).
21 24. Gudeman has no expectation of ever working for Google or Alphabet again.
22 25. Gudeman is an “aggrieved employee” under PAGA. As a former employee who
23 was not terminated in connection with a labor dispute or because of an unfair labor practice, he is
24 inarguably outside the coverage of the NLRA.
25 26. Paola Correa resides in San Francisco. Correa was directly employed by Google
26 in 2013 and then again in 2014 as an intern. As part of her termination from Google on those
27 occasions, Google required Correa to sign an “‘exit certificate” (which is discussed below). On
28 both occasions, Correa separated from Google voluntarily because the internship had ended.
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FOURTH AMENDED PAGA COMPLAINT
Exhibit A, Page 10
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.
27. 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 was supervised and
directed by both Google and Adecco during this time frame, both of whom acted as her joint
employers.
28. 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
10 was terminating her employment because she had informed someone outside of Google that she
ll worked for Google (which she did) and for disclosing so-called “confidential information” (which
12 was not confidential) to someone outside of Google. Google and/or Adecco did not terminate the
13 white men who engaged in similar conduct.
14 29. Since her termination, Adecco has steadfastly refused to state why, exactly, Correa
15 was terminated. It refuses to identify who decided to terminate her. The only written document
16 produced by Adecco or Google concerning Correa’s termination simply states Correa was “not a
17 good fit.”
18 30. Despite Correa’s discovery requests, Adecco refuses to produce documents
19 concerning Correa’s termination.
20 31. Despite Plaintiffs’ Labor Code and discovery requests, Google refuses to produce
21 documents concerning Correa’s December 2016 termination, claiming all such documents are
22 “privileged.” Google has not produced a privilege log.
23 32. 14. Correa was not terminated for conduct that was arguably protected or
24 prohibited by the National Labor Relations Act. Correa was not arguably terminated as a
25 consequence of, or in connection with, a labor dispute.
26 33, 16. Upon her termination in December 2016, Adecco required Correa to sign
27 “exit certificate.” On information and belief (because this writing has been withheld by
28 Defendants), this exit certificate required Correa to continue to abide by Adecco’s and potentially
-7T-
FOURTH AMENDED PAGA COMPLAINT
Exhibit A, Page 11
Google’s confidentiality agreements, policies, and practices.
34, 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.
35. 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.
Google and Alphabet
36. 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,
10 including managers and supervisors undisputedly outside the jurisdiction of the NLRA. Google
ll also employs an unknown number of contingent workers. On information and belief, there are
12 thousands more former employees who continue to be subject to Google’s unlawful agreements
13 and policies. All of these individuals are aggrieved employees under PAGA.
14 37. Defendant Alphabet, Inc. is a publicly-traded corporation headquartered in Silicon
15 Valley. It was founded in 2015 by the founders of Google as a holding company for Google and
16 other companies owned by Alphabet. Alphabet and Google share directors and executives.
17 They also share property. They share procedures and policies. On information and belief,
18 Google and Alphabet exercise common control of labor relations.
19 38. Google and Alphabet constitute either joint employers of all Googlers, or they
20 constitute a single employer or integrated enterprise. Both entities are liable for each of the
21 PAGA violations alleged in this Fourth Amended Complaint (except as to those that are alleged
22 solely against Adecco). Google and Alphabet are also the employers of its contingent workers,
23 including those that are employed by Adecco.
24 Adecco
25 39, Adecco Group North America and Adecco USA Ince. (collectively “Adecco”) are
26 headquartered in Florida. Both employ contingent workers like Correa throughout California.
27
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FOURTH AMENDED PAGA COMPLAINT
Exhibit A, Page 12
SUMMARY OF LEGAL VIOLATIONS
40, 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,
10 acquaintances, and the overall experience they obtained at Google or Adecco in their new
ll employment. The agreements and policies also restrain the right of former employees to recruit
12 their former colleagues using information that is not confidential as a matter of law.
13 41, Indeed, the Adecco Confidentiality Agreement and policies go even further. They
14 prevent employees from working for an Adecco client without Adecco’s permission,
15 approaching an Adecco client about work, or contacting an Adecco client following the end of an
16 assignment.
17 42. Second, California Labor Code § 96(k) expressly permits employees to engage in
18 lawful conduct during non-work hours away from their employer’s premises. This lawful
19 conduct includes the exercise of constitutional rights such as freedom of speech and freedom to
20 work. California Labor Code § 98.6(b) prohibits an employer from threatening to discharge
21 employees who exercise their constitutional rights and/or engages in lawful conduct during non-
22 work hours.
23 43. Google and Adecco threaten to discharge employees who exercise their
24 constitutional rights by providing information to the press or otherwise exercising their freedom
25 of speech rights under the California and United States Constitutions, as well as their rights
26 under the Labor Code. Google and Adecco also threaten to discharge employees who disclose
27 “confidential information” to prospective employers in furtherance of their right to economic
28
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FOURTH AMENDED PAGA COMPLAINT
Exhibit A, Page 13
liberty under the California and United States Constitutions. This is a violation of Labor Code §
98.6(b).
44. 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 reporting or investigating a
suspected violation of the law. And
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.
10
Federal Defend Trade Secrets Act § 7(b).
ll 4S. Google and Adecco do not include the required notices in their confidentiality
12 agreements with employees. Instead, they inform employees that they cannot disclose
13 “confidential information” to anyone — even to an attorney or the government. This is a violation
14 of the Federal Defend Trade Secrets Act and California’s Unfair Competition Law. Cal.
15 Business & Professions Code § 17200 et seq.
16 46. Fourth, Rule 21F-17 of the Securities and Exchange Commission provides that
17 “no person may take any action to impede an individual from communicating directly with the
18 Commission staff about a possible securities law violation, including enforcing or threatening to
19 enforce a confidentiality agreement . . . . with respect to such communications.” Defendants’
20 confidentiality agreements and policies unlawfully prohibit employees from reporting possible
21 securities law violations to the SEC. This violates SEC Rule 21F-17 and California’s Unfair
22 Competition Law. Cal. Business & Professions Code § 17200 et seq.
23 47. Fifth, it is against public policy to prohibit current or former employees from
24 providing evidence and information to an attorney representing shareholders about potential
25 violations under the securities laws, as well as to an attorney or the government with respect to
26 violations of state or federal false claims acts. Google’s and Adecco’s confidentiality
27
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FOURTH AMENDED PAGA COMPLAINT
Exhibit A, Page 14
agreements and confidentiality policies do just that. This violates California’s Unfair
Competition Law. Business & Professions Code § 17200 et seq.
48. 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.
49. Seventh, California Labor Code § 1197.5(k) (formerly Labor Code § 1197.5(j))
10 states that “an employer shall not prohibit an employee from disclosing the employee’s own
ll wages, discussing the wages of others, inquiring about another’s wages, or aiding or encouraging
12 any other employee to exercise his or her rights under this section.” Google’s and Adecco’s
13 confidentiality agreements and policies prohibit employees from engaging in any of these acts.
14 This is a violation of Labor Code § 1197.5(j)/(k).
15 50. Eighth, California Labor Code § 232.5(a) and (b) prohibits employers from
16 requiring, as a condition of employment, that an employee refrain from disclosing information
17 about the employer’s working conditions. Google and Adecco, through their unlawful
18 confidentiality policies (and, where applicable, agreements), prohibit employees from disclosing
19 this information. Indeed, Google and Adecco expressly declare that employment policies and
20 agreements which concern working conditions are “confidential.” This is a violation of Labor
21 Code § 232.5.
22 Sl. Ninth, California Labor Code § 1102.5(a) states that an employer “shall not
23 make, adopt, or enforce any rule, regulation or policy preventing an employee from disclosing
24 information to a government or law enforcement agency . . . if the employee has reasonable
25 cause to believe that the information discloses a violation [of the law].” Google’s and Adecco’s
26 requirement that employees sign illegal confidentiality agreements violate this provision.
27 Google’s and Adecco’s unlawful confidentiality policies (including the Adecco handbook) also
28
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FOURTH AMENDED PAGA COMPLAINT
Exhibit A, Page 15
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).
52. 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 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
10 is another violation of Labor Code § 1102.5(a).
ll 53. Eleventh, California law prohibits requiring employees, as a condition of
12 employment, to waive rights or claims. In the relevant time period, Google required all Googlers
13 to agree, as a condition of employment, to waive their statutory rights to bring discrimination,
14 harassment, and other claims. Adecco requires all its employees to agree, as a condition of
15 employment, to waive their statutory rights and claims with respect to their participation in
16 “social events and/or activities” and their use of a “GBike.”
17 FACTS
18 As to Google and Alphabet
19 Google’s Confidentiality Agreement
20 54. On July 14, 2014, Google offered Doe a job. In his offer letter, Google stated: “as
21 an employee of Google, it is likely that you will become knowledgeable about confidential, trade
22 secret, and/or proprietary information related to the operations, products, and services of Google
23 and its clients. To protect the interests of both Google and its clients, all employees are required
24 to read and sign the enclosed At-Will Employment, Confidential Information, and Invention
25 Assignment and Arbitration Agreement as a condition of employment with Google.” (“The
26 Confidentiality Agreement”).
27 55. On October 8, 2013 Google offered Gudeman a job. Gudeman’s offer letter
28 contained the same language as Doe’s with respect to the obligation to sign the Confidentiality
++
FOURTH AMENDED PAGA COMPLAINT
Exhibit A, Page 16
Agreement.
56. 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.
57. 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).
58. The Agreement further requires Googlers, both during and after their
10 employment, to “hold in strictest confidence and take all reasonable precautions to prevent any
ll unauthorized use or disclosure of Google Confidential Information” and to “not (i) use Google
12 information for any purpose other than for the benefit of Google in the scope of [the Googler’s]
13 employment, or (ii) disclose Google ‘confidential information’ to any third party without prior
14 authorization.” Moreover, the Agreement requires Googlers to agree that “all Google
15 Confidential Information that [they] use or generate in connection with [their] employment
16 belongs to Google (or third parties identified by Google).”
17 59. Google also makes clear that the failure to abide by its Confidentiality Agreement
18 can lead to draconian results. Googlers must agree, as a condition of their employment, that any
19 “unauthorized use or disclosure of Google ‘Confidential Information’ during my employment or
20 after my employment may lead to disciplinary action, up to and including termination and/or
21 legal action.”
22 60. Google also prohibits employees from delivering to others information that does
23 not even fall within Google’s overly-broad definition of “confidential information.” Upon
24 termination, Googlers must agree to “not keep, recreate, or deliver to any other person or entity
25 any documents and materials pertaining to [their] work at Google” (whether it is “confidential”
26 under Google’s overbroad definition or not).
27 61, The Confidentiality Agreement contains no geographic or time limitation, Rather,
28 it lasts forever, and applies even after Googlers end their employment with Google.
-13-
FOURTH AMENDED PAGA COMPLAINT
Exhibit A, Page 17
62. 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.
Google’s Policies, Guidelines and Practices
63. 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
64. Google maintains a Code of Conduct policy that is for “internal purposes only.”
10 This “confidential” Code of Conduct policy states that “all documents, site pages, and resources
ll that are linked here as well as the document as a whole are considered internal and confidential.”
12 Google’ confidential” Code of Conduct policy applies to all Googlers. Google states that the
13 failure to follow the “confidential” Code of Conduct policy “can result in disciplinary action,
14 including termination of employment.”
15 65. The “confidential” Code of Conduct policy prohibits Googlers from disclosing
16 “confidential information” [which means everything at Google] without authorization.” The
17 internal policy goes further and states that “it’s also a bad idea to post your opinions or
18 information about Google on the Internet, even if not confidential, unless you’re authorized to do
19 so as part of your job. ... And never discuss the company with the press unless you’ve been
20 explicitly authorized to do so by Corporate Communications.”
21 66. The “confidential” Code of Conduct policy concludes by stating that Google
22 expects “all Googlers to be guided by both the letter and the spirit of this Code.”
23 Data Classification Guidelines
24 67. Plaintiffs, like all Googlers, are also subject to Google’s Data Classification
25 Guidelines. The Guidelines categorize Google information into three categories: “Need-to-
26 Know,” “Confidential,” and “Public.” A “Data Owner” is responsible for categorizing the
27 information, and, at Google, “no information at Google is public by default.”
28 68. Specifically, the Data Classification Guidelines state: “Everything we work on at
-14-
FOURTH AMENDED PAGA COMPLAINT
Exhibit A, Page 18
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.
Preview
F Electronically LATHAM & WATKINS LLP by Superior Court of California Linda M. Inscoe (Bar No. 125194) County of San Mateo linda.inscoe@1lw.com Christopher Campbell (Bar No. 254776) christopher.campbell@ lw.com on: 11/17/2017 Aaron T. Chiu (Bar No. 287788) aaron.chiu@lw.com Mia Marlowe Christina P. Teeter (Bar No. 301569) Deputy Clerk christina.teeter@lw.com 505 Montgomery Street, Suite 2000 San Francisco, California 94111-6538 Telephone: +1.415.391.0600 Facsimile: +1.415.395.8095 Attorneys for Defendant ADECCO USA, INC. SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 12 RACHEL MONIZ, on behalf of the State of CASE NO. 17-CIV-01736 13 California and aggrieved employees, Complaint Filed: April 18, 2017 14 Plaintiff, Trial Date: None Set 15 Vv, DECLARATION OF LINDA M. INSCOE IN SUPPORT OF DEFENDANT ADECCO USA, 16 ADECCO USA, INC. and DOES 1-50, INC.’S REQUEST FOR JUDICIAL NOTICE inclusive, IN SUPPORT OF DEFENDANT ADECCO 17 USA, INC.’S NOTICE OF MOTION AND Defendants. MOTION TO RENEW DEFENDANT’S 18 DEMURRER TO PLAINTIFF RACHEL MONIZ’S COMPLAINT PURSUANT TO 19 CCP § 1008(b), OR ALTERNATIVELY ABATE OR STAY PROCEEDINGS 20 Date: December 12, 2017 21 Time: 2:00 P.M. Place: Department 2 For All Purposes 22 Judge: Hon. Marie S. Weiner 23 [Defendant's Motion for Renewal of Defendant’s Demurrer to Plaintiffs Complaint, Request for 24 Judicial Notice, and [Proposed] Order filed concurrently herewith] 25 26 27 28 LATHAMsWATKINS ATTORNEYS AT LAW INSCOE DECL. ISO DEFENDANT'S. ‘SAN FRANCISCO REQUEST FOR JUDICAL NOTICE, CASE NO. 17-CIV-01736 I, Linda M. Inscoe, declare as follows: 1 lam an attorney duly licensed to practice before all the courts of the State of California. I am a partner with the law firm of Latham & Watkins LLP, counsel of record for Defendant Adecco USA, Inc. (“Adecco”) in the above-captioned matter. I am personally familiar with the facts set forth herein, and if called upon to do so, I could and would testify completely thereto. I submit this declaration in support of Adecco’s Request for Judicial Notice in Support of Defendant Adecco USA, Inc.’s Notice of Motion and Motion to Renew Defendant’s Demurrer to Plaintiff Rachel Moniz’s Complaint Pursuant to CCP § 1008(b), or in the Alternative, to Abate or Stay Proceedings. 10 2 Attached hereto as Exhibit A is a true and correct copy of the Fourth Amended 11 Complaint filed by the plaintiffs in Doe v. Google, Inc., Case No. CGC-16-556034 (S.F. Super. 12 Ct.), dated September 25, 2017. 13 3 Attached hereto as Exhibit B is a true and correct copy of the Order Sustaining 14 Adecco’s Demurrer to the Fourth Amended Doe Complaint in Doe v. Google, Inc., Case No. 15 CGC-16-556034 (S.F. Super. Ct.), dated November 6, 2017. 16 4. Attached hereto as Exhibit C is a true and correct copy of the Third Amended 17 Complaint in Doe v. Google, Inc., Case No. CGC-16-556034 (S.F. Super. Ct.), dated April 28, 18 2017. 19 5 Attached hereto as Exhibit D is a true and correct copy of the Order Sustaining in 20 Part with Leave to Amend Adecco’s Demurrer to Third Amended Complaint in Doe v. Google, 21 Inc., Case No. CGC-16-566034 (S.F. Super. Ct.), dated September 14, 2017. 22 6. Attached hereto as Exhibit E is a true and correct copy of Plaintiff Rachel 23 Moniz’s Response in Opposition to Adecco’s Petition for Coordination, Adecco Confidentiality 24 Agreement Cases, J.C.C.P. No. 4939 (S.F. Super. Ct. Oct. 10, 2017). 25 // 26 // 27 // 28 LATHAMsWATKINS ATTORNEYS AT LAW INSCOE DECL. ISO DEFENDANT'S. ‘SAN FRANCISCO REQUEST FOR JUDICAL NOTICE, CASE NO. 17-CIV-01736 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 17" day of November, 7 2017 at San Francisco, California. inda M. Inscoe 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LATHAMeWATKINS: INSCOE DECL. ISO DEFENDANT'S ATTORNEYS AT LAW REQUEST FOR JUDICAL NOTICE ‘SAN FRANCISCO CASE NO. 17-CIV-01736 INDEX OF EXHIBITS jem | orscmmoy Fourth Amended Complaint, Doe v. Google, Inc., Case No. | man CGC-16-556034 (S.F. Super. Ct. Sept. 25, 2017 Order Sustaining Adecco’s Demurrer to the Fourth 51 Amended Doe Complaint, Doe v. Google, Inc., Case No. CGC-16-556034 (S.F. Super. Ct. Nov. 6, 2017) Third Amended Complaint, Doe v. Google, Inc., Case No. CGC-16-556034 (S.F. Super. Ct. Apr. 28, 2017) 59 9 10 Order Sustaining in Part with Leave to Amend Adecco’s Demurrer to Third Amended Complaint, Doe v. Google, 107 ll Inc., Case No. CGC-16-566034 (S.F. Super. Ct. Sept. 14, 12 2017) 13 Plaintiff Rachel Moniz’s Response in Opposition to Adecco’s Petition for Coordination, Adecco Confidentiality 113 14 Agreement Cases, J.C.C.P. No. 4939 (S.F. Super. Ct. Oct. 10, 2017), 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LATHAMsWATKINS ATTORNEYS AT LAW INSCOE DECL. ISO DEFENDANT'S. ‘SAN FRANCISCO REQUEST FOR JUDICAL NOTICE, CASE NO. 17-CIV-01736 EXHIBIT A CHRIS BAKER, State Bar No. 181557 cbaker@bakerlp.com DEBORAH SCHWARTZ, State Bar No. 208934 ELECTRONICALLY dschwartz@bakerlp.com FILED BAKER CURTIS & SCHWARTZ, P.C. Superior Court of California, County of San Francisco 44 Montgomery Street, Suite 3520 San Francisco, CA 94104 09/25/2017 Clerk of the Court Telephone: (415) 433-1064 BY:JUDITH NUNEZ Fax: (415) 366-2525 Deputy Clerk Attorneys for Plaintiffs JOHN DOE, DAVID GUDEMAN AND PAOLA CORREA 10 SUPERIOR COURT OF CALIFORNIA ll COUNTY OF SAN FRANCISCO 12 13 JOHN DOE, DAVID GUDEMAN, and Case No. CGC-16-556034 PAOLA CORREA on behalf of the State of 14 California and aggrieved employees, FOURTH AMENDED COMPLAINT PURSUANT TO THE PRIVATE 15 Plaintiff, ATTORNEYS GENERAL ACT vs. 16 DEMAND FOR JURY TRIAL 17 GOOGLE, INC., ALPHABET, INC., ADECCO USA INC., ADECCO GROUP Dept: 304 18 NORTH AMERICA and ROES |through 10, Judge Curtis Karnow 19 Defendants. Complaint Filed: December 20, 2016 Trial Date: Not Set 20 21 IMPORTANT NOTES 22 1 In this Fourth Amended Complaint, Plaintiffs Doe, Gudeman, and Correa re- 23 24 allege the causes of action | through 17 against Google and Alphabet that the Court dismissed without leave to amend. For clarity and organizational purposes, these causes of action are now 25 numbered | through 15. Correa also re-alleges the 18" cause of action as to Adecco with respect 26 to the GBike and Social Event Releases that the Court dismissed without leave to amend. This is 27 now cause of action 23. 28 FOURTH AMENDED PAGA COMPLAINT Exhibit A, Page 5 2. 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 June 27, 2017 Order, as well as the September 14, 2017 Order. See, e.g., County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4"" 292, 312 (“where the plaintiff chooses to amend, any error in the sustaining of the demurrer is ordinarily waived”); Miletak y. All State Ins. Co. (N.D. Cal 2007) 2007 WL 7061350, *3-5 (stating that “under Ninth Circuit precedent, a plaintiff 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- 10 complaint,” without explaining if this is on a per party basi and without explaining the impact ll of a demurrer sustained with leave to amend as to all causes of action but one). 12 3 In addition, Adecco demurred as to all Plaintiffs. In its September 14, 2017 13 Order, the Court seemingly granted a// Plaintiffs the right to amend as to causes of action 1 14 through 17 as to Adecco. The Court further opined that “perhaps an amendment may take 15 Correa out of the NLRA’s definition of an “employee.” 16 4 As detailed below, all Plaintiffs can easily amend (and do amend) to allege that 17 neither Doe, Gudeman, nor Correa fall even arguably within the definition of “employee” under 18 the NLRA. 19 5 Plaintiffs also add allegations concerning Defendants’ concealment of documents 20 that Defendants required Plaintiffs to sign that likely contain illegal terms. These documents 21 may prove relevant to any statutes of limitations defenses that might arise. Once Plaintiffs obtain 22 those documents, they may seek further leave to amend. 23 6 Finally Plaintiff Correa also amends to add a cause of action under the Unfair 24 Competition Law for a public injunction prohibiting Adecco from enforcing certain unlawful 25 employment practices at issue in this case. 26 INTRODUCTION AS TO GOOGLE 27 7 Google’s motto is “don’t be evil.” Google’s illegal confidentiality agreements, 28 policies, and practices fail this test. 7 22 = FOURTH AMENDED PAGA COMPLAINT Exhibit A, Page 6 8 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 litigation or sought by the government. The policies prohibit Googlers from telling a potential employer how much money they make, or what work they 10 performed, when searching for a different job. The policies prohibit Googlers from using or ll disclosing all of their skills, knowledge, acquaintances, and their overall experience at Google 12 when working for a new employer. The policies prohibit Googlers from speaking to the 13 government, attorneys, or the press about wrongdoing at Google. The policies even prohibit 14 Googlers from speaking to their spouse or friends about whether they think their boss could do a 15 better job. 16 9 Google’s unlawful confidentiality policies are contrary to the California Labor 17 Code, contrary to public policy, and contrary to the interests of the State of California. The 18 unnecessary and inappropriate breadth of the policies are intended to control Google’s former 19 and current employees, limit competition, infringe on constitutional rights, and prevent the 20 disclosure and reporting of misconduct. The policies are wrong and illegal. 21 10. This case does not concern Google’s trade secrets, consumer privacy, or 22 information that should not be disclosed under the law (such as material non-public information 23 under the securities laws). This case instead concerns Google's use of confidentiality and other 24 agreements and policies for illegal and improper purposes. Google defines essentially 25 everything as “confidential information.” However, a publicly-traded company with Google’s 26 reach, power, and close ties to the federal government cannot be permitted to declare to its 27 workforce that everything it does and everything that happens — from the location of a water 28 cooler to serious violations of the law — is “confidential” upon pain of termination and the threat -3- FOURTH AMENDED PAGA COMPLAINT Exhibit A, Page 7 of ruinous litigation. INTRODUCTION AS TO ADECCO ll. Defendant Adecco is 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. 12. 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 10 abide by these illegal agreements, policies and practices during their employment and forever ll after. 12 13. This is against the law. 13 PARTIES 14 Plaintiffs 15 14. John Doe resides in San Francisco. From July 2014 to April 2016, Doe worked 16 as an “LS” Product Manager for Google at one of Alphabet’s “other bets” companies called Nest 17 Even then, he was a high-level employee, only three steps removed from Alphabet CEO Larry 18 Page. 19 15. In April 2016, Doe was unceremoniously terminated from Google after being 20 falsely accused of disclosing certain memes concerning Nest working conditions to the press. 21 He did not. 22 16. Doe uses a pseudonym because he should not be required to self-publish his 23 name, which would then be tied to Google’s defamatory statements about him, in order to 24 enforce rights under the Labor Code. Moreover, as the allegations set forth below make clear, 25 Google is extraordinary intolerant of individuals who disclose information about working 26 conditions (which this lawsuit does), and Doe rightfully fears retaliation. 27 17. Doe, as an L5 Product Manager, was a supervisory and/or managerial employee 28 of Google outside the coverage of the National Labor Relations Act. Google contends that Doe, -4- FOURTH AMENDED PAGA COMPLAINT Exhibit A, Page 8 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 LS 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 LS Product Manager. 10 18. Regardless, as an LS Product Manager, Doe was inarguably a ll managerial/supervisory employee of Google outside the protection of the National Labor 12 Relations Act. 13 19. Perhaps more importantly, in June 2016, Google reinstated Doe and promoted 14 him to the previously-promised position of an L6 Product Manager. He thus became an even 15 higher-level and more important employee of Google. Among other things, Google describes 16 the L6 Product Manager role thus: 17 [L6 Product Manager] owns a coherent portfolio of projects and is 18 accountable for the entire product life cycle and identifying new areas of investment (new projects) for the product. Product 19 decisions are highly complex and have long-term strategic impact on the overall Product Area, affecting all Customer’ constituents. 20 [L6 Product Manager] is the entrepreneurial negotiator for their 21 team. They can identify, negotiate, and secure resources needed for 22 a plan they define. They understand the priorities of their extended team (i.¢., their Product/PA) and how to operate effectively within 23 them. They proactively propose trade-offs in resourcing or scope and identify ways for disparate teams to work together to achieve a 24 common goal. 25 [L6 Product Manager] regularly identifies new product 26 opportunities and is highly adept at building consensus for and support of those ideas. They are a highly effective and respected 27 decision maker on their project portfolio, recognized as a product expert in that area. PM is skilled at working the whole team 28 -5- FOURTH AMENDED PAGA COMPLAINT Exhibit A, Page 9 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. 20. 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. 10 21. Doe is an “aggrieved employee” under PAGA, which applies to employees, as ll well as to supervisors and managers outside the coverage of the NLRA. 12 22. David Gudeman resides in South San Francisco. From November 2013 to 13 December 2016 Gudeman worked for Google as a software engineer. In early December 2016, 14 Google terminated Gudeman’s employment, stating that he was “unable to meet expectations for 15 a Software Engineer III.” Gudeman disagrees with this claim. Gudeman was not terminated for 16 conduct that is arguably protected or prohibited by the National Labor Relations Act. Gudeman 17 was also not arguably terminated as a consequence of, or in connection with, a labor dispute. 18 23. Gudeman seeks to write a book about Google. However, as a former employee, he 19 remains subject to Google’s unlawful confidentiality agreement as well as its unlawful policies 20 and practices (which are incorporated by reference into the confidentiality agreement). 21 24. Gudeman has no expectation of ever working for Google or Alphabet again. 22 25. Gudeman is an “aggrieved employee” under PAGA. As a former employee who 23 was not terminated in connection with a labor dispute or because of an unfair labor practice, he is 24 inarguably outside the coverage of the NLRA. 25 26. Paola Correa resides in San Francisco. Correa was directly employed by Google 26 in 2013 and then again in 2014 as an intern. As part of her termination from Google on those 27 occasions, Google required Correa to sign an “‘exit certificate” (which is discussed below). On 28 both occasions, Correa separated from Google voluntarily because the internship had ended. -6- FOURTH AMENDED PAGA COMPLAINT Exhibit A, Page 10 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. 27. 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 was supervised and directed by both Google and Adecco during this time frame, both of whom acted as her joint employers. 28. 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 10 was terminating her employment because she had informed someone outside of Google that she ll worked for Google (which she did) and for disclosing so-called “confidential information” (which 12 was not confidential) to someone outside of Google. Google and/or Adecco did not terminate the 13 white men who engaged in similar conduct. 14 29. Since her termination, Adecco has steadfastly refused to state why, exactly, Correa 15 was terminated. It refuses to identify who decided to terminate her. The only written document 16 produced by Adecco or Google concerning Correa’s termination simply states Correa was “not a 17 good fit.” 18 30. Despite Correa’s discovery requests, Adecco refuses to produce documents 19 concerning Correa’s termination. 20 31. Despite Plaintiffs’ Labor Code and discovery requests, Google refuses to produce 21 documents concerning Correa’s December 2016 termination, claiming all such documents are 22 “privileged.” Google has not produced a privilege log. 23 32. 14. Correa was not terminated for conduct that was arguably protected or 24 prohibited by the National Labor Relations Act. Correa was not arguably terminated as a 25 consequence of, or in connection with, a labor dispute. 26 33, 16. Upon her termination in December 2016, Adecco required Correa to sign 27 “exit certificate.” On information and belief (because this writing has been withheld by 28 Defendants), this exit certificate required Correa to continue to abide by Adecco’s and potentially -7T- FOURTH AMENDED PAGA COMPLAINT Exhibit A, Page 11 Google’s confidentiality agreements, policies, and practices. 34, 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. 35. 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. Google and Alphabet 36. 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, 10 including managers and supervisors undisputedly outside the jurisdiction of the NLRA. Google ll also employs an unknown number of contingent workers. On information and belief, there are 12 thousands more former employees who continue to be subject to Google’s unlawful agreements 13 and policies. All of these individuals are aggrieved employees under PAGA. 14 37. Defendant Alphabet, Inc. is a publicly-traded corporation headquartered in Silicon 15 Valley. It was founded in 2015 by the founders of Google as a holding company for Google and 16 other companies owned by Alphabet. Alphabet and Google share directors and executives. 17 They also share property. They share procedures and policies. On information and belief, 18 Google and Alphabet exercise common control of labor relations. 19 38. Google and Alphabet constitute either joint employers of all Googlers, or they 20 constitute a single employer or integrated enterprise. Both entities are liable for each of the 21 PAGA violations alleged in this Fourth Amended Complaint (except as to those that are alleged 22 solely against Adecco). Google and Alphabet are also the employers of its contingent workers, 23 including those that are employed by Adecco. 24 Adecco 25 39, Adecco Group North America and Adecco USA Ince. (collectively “Adecco”) are 26 headquartered in Florida. Both employ contingent workers like Correa throughout California. 27 28 -8- FOURTH AMENDED PAGA COMPLAINT Exhibit A, Page 12 SUMMARY OF LEGAL VIOLATIONS 40, 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, 10 acquaintances, and the overall experience they obtained at Google or Adecco in their new ll employment. The agreements and policies also restrain the right of former employees to recruit 12 their former colleagues using information that is not confidential as a matter of law. 13 41, Indeed, the Adecco Confidentiality Agreement and policies go even further. They 14 prevent employees from working for an Adecco client without Adecco’s permission, 15 approaching an Adecco client about work, or contacting an Adecco client following the end of an 16 assignment. 17 42. Second, California Labor Code § 96(k) expressly permits employees to engage in 18 lawful conduct during non-work hours away from their employer’s premises. This lawful 19 conduct includes the exercise of constitutional rights such as freedom of speech and freedom to 20 work. California Labor Code § 98.6(b) prohibits an employer from threatening to discharge 21 employees who exercise their constitutional rights and/or engages in lawful conduct during non- 22 work hours. 23 43. Google and Adecco threaten to discharge employees who exercise their 24 constitutional rights by providing information to the press or otherwise exercising their freedom 25 of speech rights under the California and United States Constitutions, as well as their rights 26 under the Labor Code. Google and Adecco also threaten to discharge employees who disclose 27 “confidential information” to prospective employers in furtherance of their right to economic 28 -9- FOURTH AMENDED PAGA COMPLAINT Exhibit A, Page 13 liberty under the California and United States Constitutions. This is a violation of Labor Code § 98.6(b). 44. 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 reporting or investigating a suspected violation of the law. And 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. 10 Federal Defend Trade Secrets Act § 7(b). ll 4S. Google and Adecco do not include the required notices in their confidentiality 12 agreements with employees. Instead, they inform employees that they cannot disclose 13 “confidential information” to anyone — even to an attorney or the government. This is a violation 14 of the Federal Defend Trade Secrets Act and California’s Unfair Competition Law. Cal. 15 Business & Professions Code § 17200 et seq. 16 46. Fourth, Rule 21F-17 of the Securities and Exchange Commission provides that 17 “no person may take any action to impede an individual from communicating directly with the 18 Commission staff about a possible securities law violation, including enforcing or threatening to 19 enforce a confidentiality agreement . . . . with respect to such communications.” Defendants’ 20 confidentiality agreements and policies unlawfully prohibit employees from reporting possible 21 securities law violations to the SEC. This violates SEC Rule 21F-17 and California’s Unfair 22 Competition Law. Cal. Business & Professions Code § 17200 et seq. 23 47. Fifth, it is against public policy to prohibit current or former employees from 24 providing evidence and information to an attorney representing shareholders about potential 25 violations under the securities laws, as well as to an attorney or the government with respect to 26 violations of state or federal false claims acts. Google’s and Adecco’s confidentiality 27 28 -10- FOURTH AMENDED PAGA COMPLAINT Exhibit A, Page 14 agreements and confidentiality policies do just that. This violates California’s Unfair Competition Law. Business & Professions Code § 17200 et seq. 48. 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. 49. Seventh, California Labor Code § 1197.5(k) (formerly Labor Code § 1197.5(j)) 10 states that “an employer shall not prohibit an employee from disclosing the employee’s own ll wages, discussing the wages of others, inquiring about another’s wages, or aiding or encouraging 12 any other employee to exercise his or her rights under this section.” Google’s and Adecco’s 13 confidentiality agreements and policies prohibit employees from engaging in any of these acts. 14 This is a violation of Labor Code § 1197.5(j)/(k). 15 50. Eighth, California Labor Code § 232.5(a) and (b) prohibits employers from 16 requiring, as a condition of employment, that an employee refrain from disclosing information 17 about the employer’s working conditions. Google and Adecco, through their unlawful 18 confidentiality policies (and, where applicable, agreements), prohibit employees from disclosing 19 this information. Indeed, Google and Adecco expressly declare that employment policies and 20 agreements which concern working conditions are “confidential.” This is a violation of Labor 21 Code § 232.5. 22 Sl. Ninth, California Labor Code § 1102.5(a) states that an employer “shall not 23 make, adopt, or enforce any rule, regulation or policy preventing an employee from disclosing 24 information to a government or law enforcement agency . . . if the employee has reasonable 25 cause to believe that the information discloses a violation [of the law].” Google’s and Adecco’s 26 requirement that employees sign illegal confidentiality agreements violate this provision. 27 Google’s and Adecco’s unlawful confidentiality policies (including the Adecco handbook) also 28 ++ FOURTH AMENDED PAGA COMPLAINT Exhibit A, Page 15 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). 52. 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 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 10 is another violation of Labor Code § 1102.5(a). ll 53. Eleventh, California law prohibits requiring employees, as a condition of 12 employment, to waive rights or claims. In the relevant time period, Google required all Googlers 13 to agree, as a condition of employment, to waive their statutory rights to bring discrimination, 14 harassment, and other claims. Adecco requires all its employees to agree, as a condition of 15 employment, to waive their statutory rights and claims with respect to their participation in 16 “social events and/or activities” and their use of a “GBike.” 17 FACTS 18 As to Google and Alphabet 19 Google’s Confidentiality Agreement 20 54. On July 14, 2014, Google offered Doe a job. In his offer letter, Google stated: “as 21 an employee of Google, it is likely that you will become knowledgeable about confidential, trade 22 secret, and/or proprietary information related to the operations, products, and services of Google 23 and its clients. To protect the interests of both Google and its clients, all employees are required 24 to read and sign the enclosed At-Will Employment, Confidential Information, and Invention 25 Assignment and Arbitration Agreement as a condition of employment with Google.” (“The 26 Confidentiality Agreement”). 27 55. On October 8, 2013 Google offered Gudeman a job. Gudeman’s offer letter 28 contained the same language as Doe’s with respect to the obligation to sign the Confidentiality ++ FOURTH AMENDED PAGA COMPLAINT Exhibit A, Page 16 Agreement. 56. 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. 57. 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). 58. The Agreement further requires Googlers, both during and after their 10 employment, to “hold in strictest confidence and take all reasonable precautions to prevent any ll unauthorized use or disclosure of Google Confidential Information” and to “not (i) use Google 12 information for any purpose other than for the benefit of Google in the scope of [the Googler’s] 13 employment, or (ii) disclose Google ‘confidential information’ to any third party without prior 14 authorization.” Moreover, the Agreement requires Googlers to agree that “all Google 15 Confidential Information that [they] use or generate in connection with [their] employment 16 belongs to Google (or third parties identified by Google).” 17 59. Google also makes clear that the failure to abide by its Confidentiality Agreement 18 can lead to draconian results. Googlers must agree, as a condition of their employment, that any 19 “unauthorized use or disclosure of Google ‘Confidential Information’ during my employment or 20 after my employment may lead to disciplinary action, up to and including termination and/or 21 legal action.” 22 60. Google also prohibits employees from delivering to others information that does 23 not even fall within Google’s overly-broad definition of “confidential information.” Upon 24 termination, Googlers must agree to “not keep, recreate, or deliver to any other person or entity 25 any documents and materials pertaining to [their] work at Google” (whether it is “confidential” 26 under Google’s overbroad definition or not). 27 61, The Confidentiality Agreement contains no geographic or time limitation, Rather, 28 it lasts forever, and applies even after Googlers end their employment with Google. -13- FOURTH AMENDED PAGA COMPLAINT Exhibit A, Page 17 62. 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. Google’s Policies, Guidelines and Practices 63. 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 64. Google maintains a Code of Conduct policy that is for “internal purposes only.” 10 This “confidential” Code of Conduct policy states that “all documents, site pages, and resources ll that are linked here as well as the document as a whole are considered internal and confidential.” 12 Google’ confidential” Code of Conduct policy applies to all Googlers. Google states that the 13 failure to follow the “confidential” Code of Conduct policy “can result in disciplinary action, 14 including termination of employment.” 15 65. The “confidential” Code of Conduct policy prohibits Googlers from disclosing 16 “confidential information” [which means everything at Google] without authorization.” The 17 internal policy goes further and states that “it’s also a bad idea to post your opinions or 18 information about Google on the Internet, even if not confidential, unless you’re authorized to do 19 so as part of your job. ... And never discuss the company with the press unless you’ve been 20 explicitly authorized to do so by Corporate Communications.” 21 66. The “confidential” Code of Conduct policy concludes by stating that Google 22 expects “all Googlers to be guided by both the letter and the spirit of this Code.” 23 Data Classification Guidelines 24 67. Plaintiffs, like all Googlers, are also subject to Google’s Data Classification 25 Guidelines. The Guidelines categorize Google information into three categories: “Need-to- 26 Know,” “Confidential,” and “Public.” A “Data Owner” is responsible for categorizing the 27 information, and, at Google, “no information at Google is public by default.” 28 68. Specifically, the Data Classification Guidelines state: “Everything we work on at -14- FOURTH AMENDED PAGA COMPLAINT Exhibit A, Page 18 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.