Preview
Electronically
FILED
so Cust of Calan, County ef San Mates
on 9/19/2019
CHRIS BAKER, State Bar No. 181557 By i
cbaker@bakerlp.com oe
DEBORAH SCHWARTZ, State Bar No. 208934
dschwartz@bakerlp.com
BAKER CURTIS & SCHWARTZ, P.C.
1 California Street, Suite 1250
San Francisco, CA 94111
Telephone: (415) 433-1064
Fax: (415) 366-2525
Attorneys for Aggrieved Parties
PAOLA CORREA and
BAKER CURTIS & SCHWARTZ, P.C.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
RACHEL MONIZ, on behalf of the State of Case No. 17CIV01736
California and aggrieved employees,
DECLARATION OF CHRIS BAKER IN
a SUPPORT OF CORREA’S OPPOSITION
Plaintiff, TO MOTION TO APPROVE
vs SETTLEMENT AND OBJECTIONS TO
SETTLEMENT
ADECCO USA, INC., and DOES 1-50, :
inclusive, Assigned for all purposes to
Hon. Marie Weiner
Defendants.
DATE: October 16, 2019
TIME: 2:00 p.m.
DEPT.: 2
Complaint Filed: April 18, 2017
Trial Date: Vacated
I, Chris Baker, declare as follows:
1. I am counsel for Paola Correa, John Doe, and David Gudeman. I have personal
knowledge of these facts.
2. On December 20, 2016, my firm filed the original complaint in Doe v. Google. A
copy of this complaint is attached to this declaration as Exhibit 1. The Complaint was the first of
its kind to challenge employer-mandated confidentiality requirements under PAGA. Adecco’s
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BAKER DECL. IN SUPPORT OF CORREA’S OPPOSITION AND OBJECTIONS TO SETTLEMENTcounsel would describe the complaint as “cutting edge” to this Court during the first demurrer
hearing on the Moniz complaint in September 2017. The Doe original complaint did not allege
claims under Labor Code §§ 96(k) or 98.6.
3. The Doe complaint was reported widely in the press. See, e.g., E.g., Reed
Albergotti, EMPLOYEE LAWSUIT ACCUSES GOOGLE OF ‘SPYING PROGRAM’ (Dec. 20,
2016, The Information) (at https://www.theinformation.com/articles/employee-lawsuit-accuses-
google-of-spying-program); Melanie Ehrenkranz, THE 10 MOST DAMNING ALLEGATIONS
FROM THE NEW GOOGLE LAWSUIT (Dec. 21, 2016, Mic) (at
https://mic.com/articles/163011/ newgoogle-lawsuit-10-damning-allegations##.GmNMjMIZ6);
Reuters, GOOGLE SUED AND ACCUSED BY EMPLOYEE OF BEING TOO
CONFIDENTIAL (Dec. 21 2016, Fortune) (at http://fortune.com/2016/12/21/google-
employeelawsuit/). I read these articles and many others about the complaint at the time they
were published.
4. On January 3, 2017, I requested Correa’s personnel and payroll records from
Adecco in accordance with the California Labor Code. On February 2, 2017, I received the
records. Among other things, these records included a copy of the Associate NDA and
Commitment Sheet signed by Correa, as well as the Employee Handbook applicable to Correa’s
employment. I also received Correa’s wage statements, which I reviewed. According to these
wage statements, Correa worked 49 pay periods between February 1, 2016 and December 18,
2016.
5. On February 14, 2017, Correa filed a PAGA notice alleging confidentiality claims
against Adecco on behalf of all of Adecco’s employees based on its Associate NDA, Commitment
Sheet, and Employee Handbook. Thirty-seven days later, the Doe plaintiffs filed a Second
Amended Complaint adding Correa as a Plaintiff and Adecco as a Defendant. The administrative
exhaustion requirement for claims brought under Labor Code §§ 232(a) and (b) and §§ 232.5(a)
and (b) is 33 days. Labor Code § 2699.3(c)(2)(A). This complaint also alleged claims under
Labor Code §§ 96(k) and 98.6. The Doe Plaintiffs would subsequently amend the complaint three
more times as additional exhaustion periods expired and in response to the Doe court’s demurrer
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BAKER DECL. IN SUPPORT OF CORREA’S OPPOSITION AND OBJECTIONS TO SETTLEMENTtulings. A copy of the Fourth Amended Complaint in Doe is included in Adecco’s Declaration
filed in support of its Request for Judicial Notice and November 17, 2017 Renewed Demurrer. A
copy of the Fifth Amended Complaint is attached as Exhibit 2 to this declaration. The Fifth
Amended Complaint references the Google Temp NDA signed by Correa (which Google and
Adecco had previously concealed), and attaches an October 5 2017 PAGA notice with respect to
the Google Temp NDA.
6. Attached to this declaration as Exhibit 3 is the Adecco Group’s 2018 Annual
Report. I downloaded a copy of this report from Adecco’s website on June 21, 2019. According
to its annual report, Adecco “is the leader in the world of HR Solutions.” It is the largest staffing
firm in the world (with 5% market share) and it employs, at any one time, 700,000 associates who
work at more than 100,000 clients. Adecco describes its competitive strengths as including
“knowledge of complex labour regulations” and the “ability to manage large contingent
workforces.” In 2018, Adecco claimed revenue in excess of twenty-three billion euros and gross
profits in excess of more than four billion euros.
7. According to Google and Adecco, Adecco is Google’s largest provider of
temporary labor. Attached to this declaration as Exhibit 4 is the declaration of a Google senior
contracts manager stating this fact. This declaration was filed in support of Google’s and
Adecco’s motion to seal their Temporary Staffing Services Agreement (TSSA) in the Doe case.
The motion to seal was denied. Attached to this declaration as Exhibit 5 is a copy of the operative
TSSA between Google and Adecco. I received this document from Adecco during discovery in
the Doe case.
8. Attached to this declaration as Exhibit 6 is a copy of Google’s Data Classification
Guidelines. Attached to this declaration as Exhibit 7 is a copy of Google’s Employee
Communication Policy. Attached to this declaration as Exhibit 8 is a copy of Google’s
Communication and Disclosure Policy. Attached to this declaration as Exhibit 9 is a copy of
Google’s internal and confidential code of conduct. Attached to this declaration as Exhibit 10 is a
copy of Google’s “You Said What?” Training Program. These policies and training programs
were produced by Google in discovery in the Doe case. According to the deposition testimony of
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BAKER DECL. IN SUPPORT OF CORREA’S OPPOSITION AND OBJECTIONS TO SETTLEMENTGoogle witnesses, these policies and training programs were all in effect throughout Correa’s
employment at Google.
9. The Google Temp NDA contains the adult content release that was also at issue in
Doe. According to Adecco’s discovery responses in the Doe case, 2,256 Adecco Associates were
required to sign the Google Temp NDA (with the adult content release) between February 16,
2016 and March 16, 2017. These Adecco Associates, all of whom were subject to Google’s and
Adecco’s confidentiality requirements, worked a total of 87,845 pay periods between February 16,
2016 and March 16, 2017. A copy of Adecco’s discovery responses in the Doe case setting forth
this information is attached as Exhibit 11,
10. The “stacked” value of the PAGA claims as to Adecco arising from Correa’s
employment at Google exceeds $59,000. I calculate this amount as follows:
a. Labor Code §§ 98.6 and 1102.5 each provides for a $10,000 civil penalty for
every violation. Labor Code §§ 98.6(b)(3), 1102.5(f). I assume for purposes of this
calculation that an employer is liable for only one violation per employee for a violation of
Labor Code §§ 98.6 and 1102.5. Thus, the value of Correa’s claims under these sections is,
at a minimum, $20,000.
b. The civil penalty under PAGA for violations of Labor Code §§ 96(k), 232,
232.5, 1197.5, and 432.5 are $100 for the first violation and $200 for each subsequent
violation, per employee/per pay period. I assume here, based on a ruling by the Doe court,
that the penalty under Labor Code § 432.5 is only $100 per employee because the
employee only signs the Associate NDA once. However, they separately sign, at a
minimum, the Commitment Sheet and Google Temp NDA. Thus, the value of Correa’s §
432.5 claims is, at a minimum, $300. ($100 for the Associate NDA, $100 for the
Commitment Sheet, and $100 for the Google Temp NDA). Moreover, if you add $100 for
each first violation of Labor Code § 96(k), 232, 232.5, and 1197.5, the total initial violation
amount comes to $700.
Cc Subsequent violation penalties under Labor Code §§ 96(k), 232, 232.5 and
1197.5, on the other hand, are on a $200 per employee/per pay period basis. The stacked
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BAKER DECL. IN SUPPORT OF CORREA’S OPPOSITION AND OBJECTIONS TO SETTLEMENTvalue of these penalties, given the number of pay periods Correa worked, results in, at a
minimum, an additional $38,400 in confidentiality-based penalties arising from Correa’s
Adecco employment.
d. Adding these numbers together ($20,000 + $700 + 38,400) results in total
confidentiality-based PAGA penalties, arising from Correa’s employment alone, of at least
$59,100. Correa’s 25% share of these civil penalties is thus, at least, $14,775.
11. Performing the same calculation across all of Adecco’s Google-based Associates
between February 16, 2016 and March 16, 2017, the “stacked” value of the confidentiality-based
PAGA claims against Adecco exceeds $120,000,000, with each Associate’s 25% share being, on
average, more than $13,000.
12. Attached to this declaration as Exhibit 12 is a March 5, 2018 letter from Adecco’s
counsel to Moniz’s counsel meeting and conferring on the “scope issue.” I received this letter
from Adecco following the April 3, 2018 mediation between Correa and Adecco as part of the
meet and confer process. Page eight (8) of this letter states: “As counsel is aware, Moniz is
barred from amending her Complaint and/or PAGA notice in this action due to the
confidential settlement agreement between Moniz, Adecco, and Google.”
13. Attached to this declaration as Exhibit 13 is Moniz’s March 29, 2018 ex parte
application to intervene in the mediation between Adecco and Correa. Attached to this declaration
as Exhibit 14 is Moniz’s memorandum of points and authorities in support of this ex parte
application.
14. Attached to this declaration as Exhibit 15 is a true and correct copy of the certified
transcript of the September 6, 2017 hearing before this Court with respect to Adecco’s first
demurrer.
15. Attached to this declaration as Exhibit 16 is a true and correct copy of the certified
transcript of the December 12, 2017 hearing on Adecco’s renewed demurrer and discovery
conference.
16. Attached to this declaration as Exhibit 17 is a true and correct copy of the certified
transcript of the May 3, 2018 hearing on Correa’s motion to intervene.
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BAKER DECL. IN SUPPORT OF CORREA’S OPPOSITION AND OBJECTIONS TO SETTLEMENT17. Attached this declaration as Exhibit 18 is a true and correct copy of the certified
transcript of the August 26, 2019 hearing before this Court with respect to Correa’s and the State’s
motion to vacate the judgment.
18. Following the August 26, 2019 hearing, I spoke to Moniz’s counsel to determine if
they believed Adecco might be willing to modify the proposed settlement to address some of
Correa’s objections. I explained that, based on Adecco’s counsel’s statements at the hearing,
Adecco expressly sought to extinguish the confidentiality claims pled only in Doe through the
Moniz settlement. Moniz’s counsel (Kyle Bates) stated he was unwilling to inquire whether
Adecco would agree to modify the settlement, and had no intention of seeking a modification to
the settlement. With respect to whether the Moniz settlement would extinguish the Doe claims not
at issue in Moniz, Moniz’s counsel stated “maybe the settlement would have that impact and
maybe it wouldn’t. He didn’t know.”
19. On the morning August 27, 2019, I sent an email to Moniz’s counsel confirming
this conversation. I asked him to “Let me know if you disagree with this summary or if you
believe I have left anything material out.” I received no response. A copy of this email is attached
to this declaration as Exhibit 19. I received no response to this email.
20. Attached to this declaration as Exhibit 20 is a true and correct copy of relevant
excerpts of Adecco’s April 26, 2019 answering brief in Correa’s appeal of this Court’s order
denying her motion to intervene.
21. Attached to this declaration as Exhibit 21 is a true and correct copy of the LWDA’s
June 16, 2017 Amicus Brief filed in the case of Price v. Uber Technologies, Case No. BCS554512,
Los Angeles Superior Court. My office obtained this brief from the Los Angeles Superior Court’s
on-line docket.
22. Attached to this declaration as Exhibit 22 is a true and correct copy of the LWDA’s
March 14, 2018 Amicus Brief filed in Alonzo v. First Transit Inc., California Court of Appeal,
Second Appellate District, Case No. B277109. My office obtained this brief from the Labor
Workforce and Development Agency.
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BAKER DECL. IN SUPPORT OF CORREA’S OPPOSITION AND OBJECTIONS TO SETTLEMENT23. The Doe case is currently on appeal. The appeal presents the issue of whether the
Doe court erred in finding all of Correa’s confidentiality-based PAGA claims against Adecco and
Google preempted by federal labor law. Plaintiffs filed their opening brief on May 9, 2019.
Adecco has requested numerous extensions to respond to this appeal and, to date, has not yet filed
an answering brief.
I declare under penalty of perjury, under the laws of the State of California, that the
foregoing is true and correct. Executed this 19th day of September, 2019, in San Francisco,
California.
(2,
Chris Baker ~ 7 7
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BAKER DECL. IN SUPPORT OF CORREA’S OPPOSITION AND OBJECTIONS TO SETTLEMENTEXHIBIT 1
BD-001‘BAKER CURTIS & SCHWARTZ, P.C.
CHRIS BAKER, State Bar No. 181557 ENDORSED
cbaker@bakerlp.com Fre
DEBORAH SCHWARTZ, State Bar No. 208934 Seperor Goutal
dschwartz@bakerlp.com Francisco
44 Montgomery Street, Suite 3520 DEC 20 2016
San Francisco, CA 94104
Telephone: (415) 433-1064 a OF THE Court
Fax: (415) 520-0446 Poon
uty Clerk
Attorneys for Plaintiff
JOHN DOE
BEFORE THE CALIFORNIA SUPERIOR COURT
CITY AND COUNTY OF SAN FRANCISCO
JOHN DOE, on behalf of the State of California] Case n&GE = 1 6 - 55 6 0 3 4
and aggrieved employees
oo COMPLAINT PURSUANT TO THE
Plaintiff, PRIVATE ATTORNEYS GENERAL ACT
DEMAND FOR A JURY TRIAL
GOOGLE, INC. and ROES 1 through 10
Defendant.
INTRODUCTION
1, Google’s motto is “don’t be evil.” Google’s illegal confidentiality agreements,
policies, and practices fail this test.
2. As a condition of employment, Defendant Google, Inc. requires all of its
employees, including supervisors and managers (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
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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 the skills, knowledge,
acquaintances, and 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.
3. 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.
4. 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
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 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.
PARTIES
5. John Doe is currently employed by Google, Inc. as a Product Manager, which
Google describes and contends is a supervisory or managerial position. He resides in San
Francisco, California. He is an aggrieved employee under the Private Attorneys General Act
(“PAGA”).
6. Plaintiff brings this suit as a “Doe” because Brian Katz, Google’s Director of
Global Investigations, Intelligence & Protective Services, falsely informed approximately 65,000
Googlers that Plaintiff was terminated for “leaking” certain information to the press. In fact,
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Plaintiff did not leak the identified information to the press and Katz knew he did not. Rather,
Katz and Google used Plaintiff as a very public scapegoat to ensure that other Googlers continued
to comply with Google’s unlawful confidentiality policies.
7. While Google did not identify Plaintiff as the leaker by name, a number of
Googlers concluded that Doe and the employee identified as the leaker were one and the same.
Plaintiff should not be required to self-publish his name, further damaging his reputation among
those Googlers who do not yet know it, as well as in the technology industry as a whole (who
might also believe Katz’s lies), in order to bring this claim on behalf of the State and other
aggrieved employees.
8. Google employs, at any one time, approximately 65,000 Googlers. On
information and belief, there are thousands more ex-Googlers who continue to be subject to
Google’s unlawful Confidentiality Agreement and policies. Each Googler is paid at least twice a
month, amounting to, on information belief, more than 1,560,000 pay periods per year. Current
and former Googlers are aggrieved employees under the Private Attorneys General Act.
9. Defendant Google, Inc. is a publicly-traded corporation headquartered in Silicon
Valley. It has offices in San Francisco. Google’s illegal Confidentiality Agreement, policies, and
practices are created in, distributed from, and enforced through persons working in California.
10. Google is politically powerful — particularly on the national level. According to a
recent newspaper article, “[Google] executives enjoyed lavish parties and regular contact with the
highest-ranking people in the executive branch. Personnel seemingly moved from one entity to
the other and back on a regular basis. More than 250 individuals have left the government for
Google or vice versa during [President] Obama’s tenure. This kind of integration with one
company and the executive branch is extraordinary.”
11. The California and United States Constitutions provide for, among other things,
freedom of speech and freedom of the press. The press is the “Fourth Estate,” responsible for
policing both the government and the powerful. To accomplish its purpose, the press must have
access to information. Without the pressure and attention that only the press can generate,
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governments — and particularly political appointees — may decline to act when doing so would
disappoint or upset an important benefactor like Google.
12. Sunlight remains the best disinfectant. Google must let the sun shine in.
SUMMARY OF LEGAL VIOLATIONS
Google’s Agreement and Policies Are Illegal
13. The use of illegal confidentiality agreements and policies to muzzle employees is
illegal under both federal and state law.
14. 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. Google’s “Confidentiality Agreement”
unlawfully restrains trade, because it prevents Googlers from effectively seeking new work. If
they do find new work, the Confidentiality Agreement and policies prohibits ex-Googlers from
using or disclosing information that is not confidential as a matter of law. Among other things,
the Confidentiality Agreement and policies prohibits Googlers from using all of the skills,
knowledge, acquaintances, and the overall experience they obtained at Google in their new
employment.
15. 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 non-
work hours.
16. Google threatens to discharge Googlers 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. Google also threatens to discharge Googlers 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).
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17. 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
db. 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).
18. Google does not include the required notices in its Confidentiality Agreement with
employees. Instead, it informs Googlers 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 and California’s Unfair Competition Law. Cal. Business & Professions Code § 17200 et
seq.
19, 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.” Google’s
“Confidentiality Agreement” and policies unlawfully prohibit Googlers 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.
20. Fifth, it is against public policy to prohibit current or former employees from
providing evidence and information to an attorney representing shareholders about potential
violations under the securities laws. Google’s “Confidentiality Agreement” and confidentiality
policies do just that. This violates California’s Unfair Competition Law. Business & Professions
Code § 17200 et seg.
21. Sixth, California Labor Code §§ 232(a) and (b) prohibits employers from requiring,
as a condition of employment, that an employee refrain from disclosing the amount of his or her
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wages. Google’s confidentiality policies prohibit Googlers from disclosing the amount of their
wages. This is a violation of Labor Code §§ 232(a) and (b).
22. Seventh, California Labor Code § 1197.5(j)(1) 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 confidentiality policies prohibit Googlers from engaging in]
any of these acts. This is a violation of Labor Code § 1197.5(j).
23. Eighth, California Labor Code § 232.5(a) and (b) prohibits employers from
requiring, as a condition of employment, that an employee refrain from disclosing information
about the employer’s working conditions. Google, through its unlawful confidentiality policies,
prohibit employees from disclosing this information. This is a violation of Labor Code § 232.5.
24. 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 practice of requiring
employees to sign its illegal “Confidentiality Agreement” violates this provision. Google’s
unlawful confidentiality policies also prohibit disclosure of information to the government or a law
enforcement agency of potential violations of the law. The Agreement and policies thus violate
Labor Code § 1102.5(a).
25. 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. Google’s unlawful policies restrict employees from
reporting violations of the law internally. Googlers are prohibited from communicating to other
Googlers that a Google product may dangerous or that Google’s conduct is illegal. This is another
violation of Labor Code § 1102.5(a).
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26. Eleventh, California Labor Code § 432.5 prohibits an employer from requiring an
employee to agree in writing to any term or condition which the employer knows is prohibited by
law. Google knows that its Confidentiality Agreement and confidentiality policies violate the law
for each and every reason stated above. Accordingly, Google is also in violation of Labor Code §
432.5.
FACTS
Google’s Confidentiality Agreement
27. On July 14, 2014, Google offered Plaintiff 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 Employment, Confidential Information, and
Invention Assignment and Arbitration Agreement as a condition of employment with Google.”
(“The Confidentiality Agreement”).
28. Like all Googlers, Plaintiff 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).
29. 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 Confidential Information
that [they] use or generate in connection with [their] employment belongs to Google (or third
parties identified by Google).”
30. Google also makes clear that the failure to abide by its Confidentiality Agreement
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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.”
31. 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).
32. | The Agreement also requires Googlers to abide by Google’s ‘Confidential’ Code
of Conduct and Google’s policies. Separately, Google also requires Googlers to agree, in writing,
to its policies.
Google’s Policies, Guidelines and Practices
33. Any potential exception or ambiguity in the Confidentiality Agreement to the
notion that Google treats everything as “confidential” is eliminated by Google’s policies,
guidelines, practices and enforcement efforts. These additional materials and practices
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
34. 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.”
dg
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.”
35. The “confidential” Code of Conduct policy prohibits Googlers from disclosing
“confidential information” [which means everything at Google] without authorization.” The
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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.”
36. 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.”
Data Classification Guidelines
37. Plaintiff, like all Googlers, is 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.”
38. 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
39. In addition to requiring Googlers to keep all information about Google
“confidential,” Google places additional onerous restrictions on Googlers’ freedom to speak.
40. 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 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.”
41. The Employee Communication Policy states that the vast majority of Googlers
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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.”
42. 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.
43. — 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 example, anyone with a 401(k) plan
is potentially a “member of the investment community.”
44. — 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
45. Google engages in a concerted effort to prevent both internal and external
whistleblowing. 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:
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“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 “Inside the
U.S., government agencies often pressure companies to waive the privilege.” Google advises
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.”
46. 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.
47. Asan 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
48. 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 plans, customer lists, financial information,
and information related to [the Googler’s] work product.”
49. 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
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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
50. 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
51. 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.”
52. 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.”
53. This lesson is emphasized in yet another training program that states: “Google’s
confidential information should never be shared outside the Company without proper
authorization.”
Stop Leaks
54. 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.
55. 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
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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!”
56. The Stopleaks program is managed through an internal website that includes a
Chrome extension to facilitate the reporting of alleged “leaks” on the internet. Employees are
required under Google policies to report “leaks” to Stopleaks. A violation of Google’s policies
can result in termination.
57. 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.”
58. 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.”
59. 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
60. 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. 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.”
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61. As detailed above, the alleged “values” that Katz and the Investigations Team
contends make Google a community violate California law and infringe on Googlers’ legal rights.
Google’s Ineffective “Savings” Provisions
62. 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.
63. For example, contrary to its “confidential” Code of Conduct Policy, Google’s
“Employee Communication Policy” states that “[nJothing 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 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.” However, 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.
64. 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. Google also did not amend its other
policies (including its “confidential” Code of Conduct policy which declares virtually every other
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Google policy “confidential” as well) or its Confidentiality Agreement. Google did not train
Googlers about this amendment, and Google did not change its enforcement policies and
practices.
65. In fact, Google’s actual policies and practices remain unchanged. 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 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.
66. Because Google requires Googlers to waive their right to seek class-wide
injunctive relief for Google’s illegal conduct, the only effective remedy to address Google’s
illegal conduct is the aggressive and full imposition of penalties under the Private Attorneys
General Act.
67. Doe has exhausted his administrative remedies in accordance with Labor Code §
2699 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 and June 14, 2016 and attached as Exhibit 1. Plaintiff received no response from
the LWDA to this correspondence.
68. Accordingly, Doe, on behalf of the State and all Googlers, seeks these penalties in
full.
First Cause of Action
PAGA (with reference to Labor Code § 432.5)
Illegal Restraint of Trade — Post-Employment
69. Plaintiff incorporates through reference paragraphs | through 68 as if set forth
here.
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70. 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.
71. Google’s Confidentiality Agreement and policies contain no geographic or time
limitation.
72. Google requires employees to agree, in writing, to a Confidentiality Agreement
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 Agreement purports
to prevent employees from using or disclosing all the general skills, knowledge, acquaintances,
and the overall experience they obtained at Google. The Confidentiality Agreement also purports
to prevent employees from using or disclosing general business practices. The Confidentiality
Agreement also purports to prevent employees from using or disclosing customer information
that is readily available to competitors through normal competitive means. The Confidentiality
Agreement violates California Business & Professions Code § 17200 et seq.
73. Google is aware that its Confidentiality Agreement violates the law.
74. Accordingly, Google imposes a term and condition of employment on all Googlers
that it knows is prohibited by law in violation of Labor Code § 432.5.
75. 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.”
76. Plaintiff seeks, on behalf of himself, 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.
Second Cause of Action
PAGA (with reference to Labor Code § 432.5)
Illegal Restraint of Trade — Mobility of Employment
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77. Plaintiff incorporates through reference paragraphs 1 through 76 as if set forth
here.
78. Google requires employees to agree in writing to a Confidentiality Agreement and
confidentiality policies that unlawfully restrain trade by prohibiting employees from speaking
with prospective employers about their work at Google as well as 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. and California Labor Code §§ 232, 232.5 and 1197(j). Google is aware that
its Confidentiality Agreement and policies violate the law.
79. Accordingly, Google imposes a term and condition of employment on all Googlers
that it knows is prohibited by law in violation of Labor Code § 432.5.
80. 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.”
81. Plaintiff seeks, on behalf of himself, 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.
Third C
Preview
Electronically FILED so Cust of Calan, County ef San Mates on 9/19/2019 CHRIS BAKER, State Bar No. 181557 By i cbaker@bakerlp.com oe DEBORAH SCHWARTZ, State Bar No. 208934 dschwartz@bakerlp.com BAKER CURTIS & SCHWARTZ, P.C. 1 California Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 433-1064 Fax: (415) 366-2525 Attorneys for Aggrieved Parties PAOLA CORREA and BAKER CURTIS & SCHWARTZ, P.C. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO RACHEL MONIZ, on behalf of the State of Case No. 17CIV01736 California and aggrieved employees, DECLARATION OF CHRIS BAKER IN a SUPPORT OF CORREA’S OPPOSITION Plaintiff, TO MOTION TO APPROVE vs SETTLEMENT AND OBJECTIONS TO SETTLEMENT ADECCO USA, INC., and DOES 1-50, : inclusive, Assigned for all purposes to Hon. Marie Weiner Defendants. DATE: October 16, 2019 TIME: 2:00 p.m. DEPT.: 2 Complaint Filed: April 18, 2017 Trial Date: Vacated I, Chris Baker, declare as follows: 1. I am counsel for Paola Correa, John Doe, and David Gudeman. I have personal knowledge of these facts. 2. On December 20, 2016, my firm filed the original complaint in Doe v. Google. A copy of this complaint is attached to this declaration as Exhibit 1. The Complaint was the first of its kind to challenge employer-mandated confidentiality requirements under PAGA. Adecco’s -1- BAKER DECL. IN SUPPORT OF CORREA’S OPPOSITION AND OBJECTIONS TO SETTLEMENTcounsel would describe the complaint as “cutting edge” to this Court during the first demurrer hearing on the Moniz complaint in September 2017. The Doe original complaint did not allege claims under Labor Code §§ 96(k) or 98.6. 3. The Doe complaint was reported widely in the press. See, e.g., E.g., Reed Albergotti, EMPLOYEE LAWSUIT ACCUSES GOOGLE OF ‘SPYING PROGRAM’ (Dec. 20, 2016, The Information) (at https://www.theinformation.com/articles/employee-lawsuit-accuses- google-of-spying-program); Melanie Ehrenkranz, THE 10 MOST DAMNING ALLEGATIONS FROM THE NEW GOOGLE LAWSUIT (Dec. 21, 2016, Mic) (at https://mic.com/articles/163011/ newgoogle-lawsuit-10-damning-allegations##.GmNMjMIZ6); Reuters, GOOGLE SUED AND ACCUSED BY EMPLOYEE OF BEING TOO CONFIDENTIAL (Dec. 21 2016, Fortune) (at http://fortune.com/2016/12/21/google- employeelawsuit/). I read these articles and many others about the complaint at the time they were published. 4. On January 3, 2017, I requested Correa’s personnel and payroll records from Adecco in accordance with the California Labor Code. On February 2, 2017, I received the records. Among other things, these records included a copy of the Associate NDA and Commitment Sheet signed by Correa, as well as the Employee Handbook applicable to Correa’s employment. I also received Correa’s wage statements, which I reviewed. According to these wage statements, Correa worked 49 pay periods between February 1, 2016 and December 18, 2016. 5. On February 14, 2017, Correa filed a PAGA notice alleging confidentiality claims against Adecco on behalf of all of Adecco’s employees based on its Associate NDA, Commitment Sheet, and Employee Handbook. Thirty-seven days later, the Doe plaintiffs filed a Second Amended Complaint adding Correa as a Plaintiff and Adecco as a Defendant. The administrative exhaustion requirement for claims brought under Labor Code §§ 232(a) and (b) and §§ 232.5(a) and (b) is 33 days. Labor Code § 2699.3(c)(2)(A). This complaint also alleged claims under Labor Code §§ 96(k) and 98.6. The Doe Plaintiffs would subsequently amend the complaint three more times as additional exhaustion periods expired and in response to the Doe court’s demurrer -2- BAKER DECL. IN SUPPORT OF CORREA’S OPPOSITION AND OBJECTIONS TO SETTLEMENTtulings. A copy of the Fourth Amended Complaint in Doe is included in Adecco’s Declaration filed in support of its Request for Judicial Notice and November 17, 2017 Renewed Demurrer. A copy of the Fifth Amended Complaint is attached as Exhibit 2 to this declaration. The Fifth Amended Complaint references the Google Temp NDA signed by Correa (which Google and Adecco had previously concealed), and attaches an October 5 2017 PAGA notice with respect to the Google Temp NDA. 6. Attached to this declaration as Exhibit 3 is the Adecco Group’s 2018 Annual Report. I downloaded a copy of this report from Adecco’s website on June 21, 2019. According to its annual report, Adecco “is the leader in the world of HR Solutions.” It is the largest staffing firm in the world (with 5% market share) and it employs, at any one time, 700,000 associates who work at more than 100,000 clients. Adecco describes its competitive strengths as including “knowledge of complex labour regulations” and the “ability to manage large contingent workforces.” In 2018, Adecco claimed revenue in excess of twenty-three billion euros and gross profits in excess of more than four billion euros. 7. According to Google and Adecco, Adecco is Google’s largest provider of temporary labor. Attached to this declaration as Exhibit 4 is the declaration of a Google senior contracts manager stating this fact. This declaration was filed in support of Google’s and Adecco’s motion to seal their Temporary Staffing Services Agreement (TSSA) in the Doe case. The motion to seal was denied. Attached to this declaration as Exhibit 5 is a copy of the operative TSSA between Google and Adecco. I received this document from Adecco during discovery in the Doe case. 8. Attached to this declaration as Exhibit 6 is a copy of Google’s Data Classification Guidelines. Attached to this declaration as Exhibit 7 is a copy of Google’s Employee Communication Policy. Attached to this declaration as Exhibit 8 is a copy of Google’s Communication and Disclosure Policy. Attached to this declaration as Exhibit 9 is a copy of Google’s internal and confidential code of conduct. Attached to this declaration as Exhibit 10 is a copy of Google’s “You Said What?” Training Program. These policies and training programs were produced by Google in discovery in the Doe case. According to the deposition testimony of -3- BAKER DECL. IN SUPPORT OF CORREA’S OPPOSITION AND OBJECTIONS TO SETTLEMENTGoogle witnesses, these policies and training programs were all in effect throughout Correa’s employment at Google. 9. The Google Temp NDA contains the adult content release that was also at issue in Doe. According to Adecco’s discovery responses in the Doe case, 2,256 Adecco Associates were required to sign the Google Temp NDA (with the adult content release) between February 16, 2016 and March 16, 2017. These Adecco Associates, all of whom were subject to Google’s and Adecco’s confidentiality requirements, worked a total of 87,845 pay periods between February 16, 2016 and March 16, 2017. A copy of Adecco’s discovery responses in the Doe case setting forth this information is attached as Exhibit 11, 10. The “stacked” value of the PAGA claims as to Adecco arising from Correa’s employment at Google exceeds $59,000. I calculate this amount as follows: a. Labor Code §§ 98.6 and 1102.5 each provides for a $10,000 civil penalty for every violation. Labor Code §§ 98.6(b)(3), 1102.5(f). I assume for purposes of this calculation that an employer is liable for only one violation per employee for a violation of Labor Code §§ 98.6 and 1102.5. Thus, the value of Correa’s claims under these sections is, at a minimum, $20,000. b. The civil penalty under PAGA for violations of Labor Code §§ 96(k), 232, 232.5, 1197.5, and 432.5 are $100 for the first violation and $200 for each subsequent violation, per employee/per pay period. I assume here, based on a ruling by the Doe court, that the penalty under Labor Code § 432.5 is only $100 per employee because the employee only signs the Associate NDA once. However, they separately sign, at a minimum, the Commitment Sheet and Google Temp NDA. Thus, the value of Correa’s § 432.5 claims is, at a minimum, $300. ($100 for the Associate NDA, $100 for the Commitment Sheet, and $100 for the Google Temp NDA). Moreover, if you add $100 for each first violation of Labor Code § 96(k), 232, 232.5, and 1197.5, the total initial violation amount comes to $700. Cc Subsequent violation penalties under Labor Code §§ 96(k), 232, 232.5 and 1197.5, on the other hand, are on a $200 per employee/per pay period basis. The stacked -4- BAKER DECL. IN SUPPORT OF CORREA’S OPPOSITION AND OBJECTIONS TO SETTLEMENTvalue of these penalties, given the number of pay periods Correa worked, results in, at a minimum, an additional $38,400 in confidentiality-based penalties arising from Correa’s Adecco employment. d. Adding these numbers together ($20,000 + $700 + 38,400) results in total confidentiality-based PAGA penalties, arising from Correa’s employment alone, of at least $59,100. Correa’s 25% share of these civil penalties is thus, at least, $14,775. 11. Performing the same calculation across all of Adecco’s Google-based Associates between February 16, 2016 and March 16, 2017, the “stacked” value of the confidentiality-based PAGA claims against Adecco exceeds $120,000,000, with each Associate’s 25% share being, on average, more than $13,000. 12. Attached to this declaration as Exhibit 12 is a March 5, 2018 letter from Adecco’s counsel to Moniz’s counsel meeting and conferring on the “scope issue.” I received this letter from Adecco following the April 3, 2018 mediation between Correa and Adecco as part of the meet and confer process. Page eight (8) of this letter states: “As counsel is aware, Moniz is barred from amending her Complaint and/or PAGA notice in this action due to the confidential settlement agreement between Moniz, Adecco, and Google.” 13. Attached to this declaration as Exhibit 13 is Moniz’s March 29, 2018 ex parte application to intervene in the mediation between Adecco and Correa. Attached to this declaration as Exhibit 14 is Moniz’s memorandum of points and authorities in support of this ex parte application. 14. Attached to this declaration as Exhibit 15 is a true and correct copy of the certified transcript of the September 6, 2017 hearing before this Court with respect to Adecco’s first demurrer. 15. Attached to this declaration as Exhibit 16 is a true and correct copy of the certified transcript of the December 12, 2017 hearing on Adecco’s renewed demurrer and discovery conference. 16. Attached to this declaration as Exhibit 17 is a true and correct copy of the certified transcript of the May 3, 2018 hearing on Correa’s motion to intervene. -5- BAKER DECL. IN SUPPORT OF CORREA’S OPPOSITION AND OBJECTIONS TO SETTLEMENT17. Attached this declaration as Exhibit 18 is a true and correct copy of the certified transcript of the August 26, 2019 hearing before this Court with respect to Correa’s and the State’s motion to vacate the judgment. 18. Following the August 26, 2019 hearing, I spoke to Moniz’s counsel to determine if they believed Adecco might be willing to modify the proposed settlement to address some of Correa’s objections. I explained that, based on Adecco’s counsel’s statements at the hearing, Adecco expressly sought to extinguish the confidentiality claims pled only in Doe through the Moniz settlement. Moniz’s counsel (Kyle Bates) stated he was unwilling to inquire whether Adecco would agree to modify the settlement, and had no intention of seeking a modification to the settlement. With respect to whether the Moniz settlement would extinguish the Doe claims not at issue in Moniz, Moniz’s counsel stated “maybe the settlement would have that impact and maybe it wouldn’t. He didn’t know.” 19. On the morning August 27, 2019, I sent an email to Moniz’s counsel confirming this conversation. I asked him to “Let me know if you disagree with this summary or if you believe I have left anything material out.” I received no response. A copy of this email is attached to this declaration as Exhibit 19. I received no response to this email. 20. Attached to this declaration as Exhibit 20 is a true and correct copy of relevant excerpts of Adecco’s April 26, 2019 answering brief in Correa’s appeal of this Court’s order denying her motion to intervene. 21. Attached to this declaration as Exhibit 21 is a true and correct copy of the LWDA’s June 16, 2017 Amicus Brief filed in the case of Price v. Uber Technologies, Case No. BCS554512, Los Angeles Superior Court. My office obtained this brief from the Los Angeles Superior Court’s on-line docket. 22. Attached to this declaration as Exhibit 22 is a true and correct copy of the LWDA’s March 14, 2018 Amicus Brief filed in Alonzo v. First Transit Inc., California Court of Appeal, Second Appellate District, Case No. B277109. My office obtained this brief from the Labor Workforce and Development Agency. -6- BAKER DECL. IN SUPPORT OF CORREA’S OPPOSITION AND OBJECTIONS TO SETTLEMENT23. The Doe case is currently on appeal. The appeal presents the issue of whether the Doe court erred in finding all of Correa’s confidentiality-based PAGA claims against Adecco and Google preempted by federal labor law. Plaintiffs filed their opening brief on May 9, 2019. Adecco has requested numerous extensions to respond to this appeal and, to date, has not yet filed an answering brief. I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed this 19th day of September, 2019, in San Francisco, California. (2, Chris Baker ~ 7 7 -7- BAKER DECL. IN SUPPORT OF CORREA’S OPPOSITION AND OBJECTIONS TO SETTLEMENTEXHIBIT 1 BD-001‘BAKER CURTIS & SCHWARTZ, P.C. CHRIS BAKER, State Bar No. 181557 ENDORSED cbaker@bakerlp.com Fre DEBORAH SCHWARTZ, State Bar No. 208934 Seperor Goutal dschwartz@bakerlp.com Francisco 44 Montgomery Street, Suite 3520 DEC 20 2016 San Francisco, CA 94104 Telephone: (415) 433-1064 a OF THE Court Fax: (415) 520-0446 Poon uty Clerk Attorneys for Plaintiff JOHN DOE BEFORE THE CALIFORNIA SUPERIOR COURT CITY AND COUNTY OF SAN FRANCISCO JOHN DOE, on behalf of the State of California] Case n&GE = 1 6 - 55 6 0 3 4 and aggrieved employees oo COMPLAINT PURSUANT TO THE Plaintiff, PRIVATE ATTORNEYS GENERAL ACT DEMAND FOR A JURY TRIAL GOOGLE, INC. and ROES 1 through 10 Defendant. INTRODUCTION 1, Google’s motto is “don’t be evil.” Google’s illegal confidentiality agreements, policies, and practices fail this test. 2. As a condition of employment, Defendant Google, Inc. requires all of its employees, including supervisors and managers (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 PAGA COMPLAINT BD-002kR wow 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 the skills, knowledge, acquaintances, and 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. 3. 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. 4. 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 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 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. PARTIES 5. John Doe is currently employed by Google, Inc. as a Product Manager, which Google describes and contends is a supervisory or managerial position. He resides in San Francisco, California. He is an aggrieved employee under the Private Attorneys General Act (“PAGA”). 6. Plaintiff brings this suit as a “Doe” because Brian Katz, Google’s Director of Global Investigations, Intelligence & Protective Services, falsely informed approximately 65,000 Googlers that Plaintiff was terminated for “leaking” certain information to the press. In fact, -2- PAGA COMPLAINT BD-003kR wow Plaintiff did not leak the identified information to the press and Katz knew he did not. Rather, Katz and Google used Plaintiff as a very public scapegoat to ensure that other Googlers continued to comply with Google’s unlawful confidentiality policies. 7. While Google did not identify Plaintiff as the leaker by name, a number of Googlers concluded that Doe and the employee identified as the leaker were one and the same. Plaintiff should not be required to self-publish his name, further damaging his reputation among those Googlers who do not yet know it, as well as in the technology industry as a whole (who might also believe Katz’s lies), in order to bring this claim on behalf of the State and other aggrieved employees. 8. Google employs, at any one time, approximately 65,000 Googlers. On information and belief, there are thousands more ex-Googlers who continue to be subject to Google’s unlawful Confidentiality Agreement and policies. Each Googler is paid at least twice a month, amounting to, on information belief, more than 1,560,000 pay periods per year. Current and former Googlers are aggrieved employees under the Private Attorneys General Act. 9. Defendant Google, Inc. is a publicly-traded corporation headquartered in Silicon Valley. It has offices in San Francisco. Google’s illegal Confidentiality Agreement, policies, and practices are created in, distributed from, and enforced through persons working in California. 10. Google is politically powerful — particularly on the national level. According to a recent newspaper article, “[Google] executives enjoyed lavish parties and regular contact with the highest-ranking people in the executive branch. Personnel seemingly moved from one entity to the other and back on a regular basis. More than 250 individuals have left the government for Google or vice versa during [President] Obama’s tenure. This kind of integration with one company and the executive branch is extraordinary.” 11. The California and United States Constitutions provide for, among other things, freedom of speech and freedom of the press. The press is the “Fourth Estate,” responsible for policing both the government and the powerful. To accomplish its purpose, the press must have access to information. Without the pressure and attention that only the press can generate, -3- PAGA COMPLAINT BD-004kR wow governments — and particularly political appointees — may decline to act when doing so would disappoint or upset an important benefactor like Google. 12. Sunlight remains the best disinfectant. Google must let the sun shine in. SUMMARY OF LEGAL VIOLATIONS Google’s Agreement and Policies Are Illegal 13. The use of illegal confidentiality agreements and policies to muzzle employees is illegal under both federal and state law. 14. 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. Google’s “Confidentiality Agreement” unlawfully restrains trade, because it prevents Googlers from effectively seeking new work. If they do find new work, the Confidentiality Agreement and policies prohibits ex-Googlers from using or disclosing information that is not confidential as a matter of law. Among other things, the Confidentiality Agreement and policies prohibits Googlers from using all of the skills, knowledge, acquaintances, and the overall experience they obtained at Google in their new employment. 15. 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 non- work hours. 16. Google threatens to discharge Googlers 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. Google also threatens to discharge Googlers 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). -4- PAGA COMPLAINT BD-005kR wow 17. 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 db. 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). 18. Google does not include the required notices in its Confidentiality Agreement with employees. Instead, it informs Googlers 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 and California’s Unfair Competition Law. Cal. Business & Professions Code § 17200 et seq. 19, 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.” Google’s “Confidentiality Agreement” and policies unlawfully prohibit Googlers 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. 20. Fifth, it is against public policy to prohibit current or former employees from providing evidence and information to an attorney representing shareholders about potential violations under the securities laws. Google’s “Confidentiality Agreement” and confidentiality policies do just that. This violates California’s Unfair Competition Law. Business & Professions Code § 17200 et seg. 21. Sixth, California Labor Code §§ 232(a) and (b) prohibits employers from requiring, as a condition of employment, that an employee refrain from disclosing the amount of his or her -5- PAGA COMPLAINTkR wow wages. Google’s confidentiality policies prohibit Googlers from disclosing the amount of their wages. This is a violation of Labor Code §§ 232(a) and (b). 22. Seventh, California Labor Code § 1197.5(j)(1) 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 confidentiality policies prohibit Googlers from engaging in] any of these acts. This is a violation of Labor Code § 1197.5(j). 23. Eighth, California Labor Code § 232.5(a) and (b) prohibits employers from requiring, as a condition of employment, that an employee refrain from disclosing information about the employer’s working conditions. Google, through its unlawful confidentiality policies, prohibit employees from disclosing this information. This is a violation of Labor Code § 232.5. 24. 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 practice of requiring employees to sign its illegal “Confidentiality Agreement” violates this provision. Google’s unlawful confidentiality policies also prohibit disclosure of information to the government or a law enforcement agency of potential violations of the law. The Agreement and policies thus violate Labor Code § 1102.5(a). 25. 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. Google’s unlawful policies restrict employees from reporting violations of the law internally. Googlers are prohibited from communicating to other Googlers that a Google product may dangerous or that Google’s conduct is illegal. This is another violation of Labor Code § 1102.5(a). -6- PAGA COMPLAINT BD-007kR wow 26. Eleventh, California Labor Code § 432.5 prohibits an employer from requiring an employee to agree in writing to any term or condition which the employer knows is prohibited by law. Google knows that its Confidentiality Agreement and confidentiality policies violate the law for each and every reason stated above. Accordingly, Google is also in violation of Labor Code § 432.5. FACTS Google’s Confidentiality Agreement 27. On July 14, 2014, Google offered Plaintiff 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 Employment, Confidential Information, and Invention Assignment and Arbitration Agreement as a condition of employment with Google.” (“The Confidentiality Agreement”). 28. Like all Googlers, Plaintiff 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). 29. 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 Confidential Information that [they] use or generate in connection with [their] employment belongs to Google (or third parties identified by Google).” 30. Google also makes clear that the failure to abide by its Confidentiality Agreement -7- PAGA COMPLAINTkR wow 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.” 31. 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). 32. | The Agreement also requires Googlers to abide by Google’s ‘Confidential’ Code of Conduct and Google’s policies. Separately, Google also requires Googlers to agree, in writing, to its policies. Google’s Policies, Guidelines and Practices 33. Any potential exception or ambiguity in the Confidentiality Agreement to the notion that Google treats everything as “confidential” is eliminated by Google’s policies, guidelines, practices and enforcement efforts. These additional materials and practices 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 34. 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.” dg 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.” 35. The “confidential” Code of Conduct policy prohibits Googlers from disclosing “confidential information” [which means everything at Google] without authorization.” The -8- PAGA COMPLAINT BD-009kR wow 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.” 36. 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.” Data Classification Guidelines 37. Plaintiff, like all Googlers, is 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.” 38. 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 39. In addition to requiring Googlers to keep all information about Google “confidential,” Google places additional onerous restrictions on Googlers’ freedom to speak. 40. 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 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.” 41. The Employee Communication Policy states that the vast majority of Googlers -9- PAGA COMPLAINT BD-010kR wow 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.” 42. 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. 43. — 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 example, anyone with a 401(k) plan is potentially a “member of the investment community.” 44. — 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 45. Google engages in a concerted effort to prevent both internal and external whistleblowing. 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: -10- PAGA COMPLAINT BD-011kR wow “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 “Inside the U.S., government agencies often pressure companies to waive the privilege.” Google advises 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.” 46. 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. 47. Asan 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 48. 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 plans, customer lists, financial information, and information related to [the Googler’s] work product.” 49. 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 -ll- PAGA COMPLAINT BD-012kR wow 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 50. 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 51. 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.” 52. 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.” 53. This lesson is emphasized in yet another training program that states: “Google’s confidential information should never be shared outside the Company without proper authorization.” Stop Leaks 54. 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. 55. 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 -12- PAGA COMPLAINT BD-013kR wow 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!” 56. The Stopleaks program is managed through an internal website that includes a Chrome extension to facilitate the reporting of alleged “leaks” on the internet. Employees are required under Google policies to report “leaks” to Stopleaks. A violation of Google’s policies can result in termination. 57. 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.” 58. 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.” 59. 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 60. 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. 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.” -13- PAGA COMPLAINT BD-014kR wow 61. As detailed above, the alleged “values” that Katz and the Investigations Team contends make Google a community violate California law and infringe on Googlers’ legal rights. Google’s Ineffective “Savings” Provisions 62. 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. 63. For example, contrary to its “confidential” Code of Conduct Policy, Google’s “Employee Communication Policy” states that “[nJothing 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 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.” However, 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. 64. 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. Google also did not amend its other policies (including its “confidential” Code of Conduct policy which declares virtually every other -14- PAGA COMPLAINT BD-015kR wow Google policy “confidential” as well) or its Confidentiality Agreement. Google did not train Googlers about this amendment, and Google did not change its enforcement policies and practices. 65. In fact, Google’s actual policies and practices remain unchanged. 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 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. 66. Because Google requires Googlers to waive their right to seek class-wide injunctive relief for Google’s illegal conduct, the only effective remedy to address Google’s illegal conduct is the aggressive and full imposition of penalties under the Private Attorneys General Act. 67. Doe has exhausted his administrative remedies in accordance with Labor Code § 2699 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 and June 14, 2016 and attached as Exhibit 1. Plaintiff received no response from the LWDA to this correspondence. 68. Accordingly, Doe, on behalf of the State and all Googlers, seeks these penalties in full. First Cause of Action PAGA (with reference to Labor Code § 432.5) Illegal Restraint of Trade — Post-Employment 69. Plaintiff incorporates through reference paragraphs | through 68 as if set forth here. -15- PAGA COMPLAINT BD-016kR wow 70. 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. 71. Google’s Confidentiality Agreement and policies contain no geographic or time limitation. 72. Google requires employees to agree, in writing, to a Confidentiality Agreement 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 Agreement purports to prevent employees from using or disclosing all the general skills, knowledge, acquaintances, and the overall experience they obtained at Google. The Confidentiality Agreement also purports to prevent employees from using or disclosing general business practices. The Confidentiality Agreement also purports to prevent employees from using or disclosing customer information that is readily available to competitors through normal competitive means. The Confidentiality Agreement violates California Business & Professions Code § 17200 et seq. 73. Google is aware that its Confidentiality Agreement violates the law. 74. Accordingly, Google imposes a term and condition of employment on all Googlers that it knows is prohibited by law in violation of Labor Code § 432.5. 75. 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.” 76. Plaintiff seeks, on behalf of himself, 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. Second Cause of Action PAGA (with reference to Labor Code § 432.5) Illegal Restraint of Trade — Mobility of Employment -16- PAGA COMPLAINT BD-017kR wow 77. Plaintiff incorporates through reference paragraphs 1 through 76 as if set forth here. 78. Google requires employees to agree in writing to a Confidentiality Agreement and confidentiality policies that unlawfully restrain trade by prohibiting employees from speaking with prospective employers about their work at Google as well as 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. and California Labor Code §§ 232, 232.5 and 1197(j). Google is aware that its Confidentiality Agreement and policies violate the law. 79. Accordingly, Google imposes a term and condition of employment on all Googlers that it knows is prohibited by law in violation of Labor Code § 432.5. 80. 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.” 81. Plaintiff seeks, on behalf of himself, 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. Third C