Understand Your Rights. Solve Your Legal Problems
Data released from legal recruitment expert, Douglas Scott’s, annual Salary Survey recently revealed that flexi-time is the most valued benefit by legal professionals – yet only 20% of firms offer it as part of their package. Managing Director of Douglas Scott, Kathryn Riley, explains what lawyers are really looking for in their benefit packages and asks if firms are doing enough to attract and retain top talent…
I’m sure you’ll agree that it comes as no surprise that lawyers are looking for more flexibility in their roles; the world of work is changing and has been for some time now. Millennials in particular are seeking that elusive work-life balance, and the gig-economy is bringing about the ‘Uberisation’ of the workplace across industries.
Glassdoor’s 2018 50 Best Places to Work revealed the UK’s top employers as Google, Anglian Water and Bromford - businesses that all focus on employee wellbeing. Google is renowned for its culture and vast range of benefits including flexible working, free food and working from home. It’s a great formula to drive a happy workforce and something the Google credits for great performance.
Within the legal sector, however, that flexibility and balance is harder to come by; donning yesterday’s shirt after pulling an all-nighter is still seen by many as a badge of honour. It’s backed up by our research, which showed that in London across all levels legal professionals on average work a 44-hour week. Legal professionals are measured against ultra-high expectations which, while enforced by partners and management, is ultimately directed from bill-paying clients. For this and many other reasons, it’s important to note that from a practical point of view most businesses simply cannot mirror Google’s formula.
Remuneration has historically made up for these high expectations (and for many, remuneration alone is sufficient), but now we’re seeing a shift in attitude, with lawyers looking for a more holistic package. While changing expectations are largely being driven at employee level, if we can learn anything from Glassdoor’s findings, it is that prioritising employee happiness can pay dividends. This year, our Salary Survey showed an increase of three per cent on firm’s offering flexi-time from 2017’s results – a sign that smart firms are adapting.
In order to attract and retain top talent, firms need to get under the skin of what lawyers want and identify what they can offer. While flexi-time was voted number one in our survey, the results also showed a desire for increased holidays and private health care -all fairly standard benefits that will tick the box for many -, but to keep top talent, firms should start thinking outside the box.
There is no need for packages to follow the rigid formula they once did and, while some may view Google’s list of benefits as gimmicky, feedback from those benefitting is largely positive.
So, how do you know what benefits to include? Trial and error can be costly, not to mention disruptive to business. Research is key - conduct surveys with your existing team and be open when interviewing about what would excite them and demonstrate that they are valued by the firm. All too often we see the right candidate rejected because the employer is unwilling to show flexibility.
Something we all could do with reminding ourselves from time-to-time: work isn’t everything. For many, family, friends and travel all come before work. Rather than persecute those who are upfront about it, firms should be championing balance. Time and time again studies show a correlation between happiness and performance. If firms want dedicated and engaged teams, then the firm should show willing to help people find a balance across their lives.
A good example comes from a story I heard on the grapevine recently – a well-regarded solicitor was looking to make her next move on the career ladder. On the top of her priority list sat a desire to work a four-day week. She intended to spend the fifth day taking care of her child. Despite knowing her wishes, a firm went through the interview process, continuing to be taken by her credentials but thought that their reputation and high remuneration package would convince her otherwise. After rejecting their first offer and reiterating the importance of the four-day week, the firm instead offered to help with child support. She kindly declined and has since found a business who could offer what she was looking for. Fundamentally, and to the first firm’s detriment, they failed to understand the solicitor’s drivers, mired in an old-fashioned mindset that the way to attract talent is to keep adding to a salary.
Firms aren't keeping pace with the make-up and expectations of today's professionals - they must think beyond financial reward to understand what individuals really need.
There is huge opportunity for firms to trail-blaze and start setting new best practice. But the window is closing, with early adaptors already reaping the benefits of taking a new, braver approach.
As always, the best talent will go where the honey takes them – many firms will need to reconsider their definition of honey.
Kathryn Riley
Managing Director
A legal recruitment specialist for over 15 years, Kathryn Riley launched Douglas Scott back in 2004 with the intention of doing things differently. Widely regarded as one of the UK’s leading legal recruitment specialists, the business goals are to continually provide an exceptional service to both candidates and clients, to recognise talent and reward it accordingly, and quite simply, work in a way that is respectful of principles and basic good manners. Kathryn’s role as MD has allowed her to further her passion for innovation and technology within the recruitment sector and demonstrate her commitment to creating and supporting the growth of skills across the legal sector. A highly respected thought leader within the legal recruitment industry and a regular speaker on the HR & Recruitment circuit, Kath is passionate about adding tangible value to stakeholder relationships and shaping the future of legal recruitment.
The world’s biggest tech giants, the top of these being FAANGs (Facebook, Amazon, Apple, Netflix, Google), all offer the world’s top quality and quantity of consumer goods. Consumers love them and buy into them daily. Investors no less. However, one could also say they fall into the category of corporate bullies. The type that avoid taxes, destroy competition, dominate the markets, undermine democracy and as per recent headlines, abuse their control over consumer data.
While there are two sides to how these firms are perceived by the public, Lawyer Monthly asks: Should these corporations be regulated?
Recent press points towards the looming prospect of regulation and restrictions but makes sure to mention the challenges ahead and the complexities involved. It’s not going to be as easy as writing up some rules to impose. Most of the ‘fixes’ being discussed only scratch the surface of the long-term reality of regulating FAANGs and co. Even the EU’s most recent move, GDPR, claimed to be revolutionary in the way it restricts data movement and storage, may fall short of success when it comes to corporate giants.
Following recent callouts from US President Donald Trump, regarding Amazon’s association with the Postal Office and the tax it pays (or doesn’t pay), CEO Jeff Bezos has opened the discussion to regulation. Besoz says Amazon is ready to work with regulators, help educate regulators on certain issues, and will operate according to any constraints imposed, regardless of whether these might damage the company.
"So we will work with any set of regulations we are given. Ultimately, society decides that, and we will follow those rules, regardless of the impact that they have on our business. And we will find a new way, if need be, to delight customers,” he said in a conversation with Mathias Döpfner, CEO of Axel Springer.
Despite being open to the potential for regulation, Bezos has also made one other thing clear: that moving forward, the action of restricting the power of large companies like Amazon must be balanced with a continued need to incentivize innovation.
One of the most recent big company scandals means that because of Facebook’s incapacity to monitor the way apps abuse their association to users, political campaigns were strongly swayed through the use of behavioural marketing. This resulted in a hearing at Capitol Hill with Mark Zuckerberg, the social media platforms CEO, who says that given the internet’s expanding importance in consumers’ lives, inevitably expects government regulation in the near future. The challenge he brought in turn however, is that “a lot of times regulation puts in place rules that a large company like ours can easily comply with but that small start-ups can't.”
(Facebook F8 2017 San Jose Mark Zuckerber by Anthony Quintano)
Currently, companies large and small across the globe are pushing profits up 10 to 30% more thanks to artificial intelligence, a technology that relies on the collection and processing of data, and which if stifled by regulation would set back many smaller businesses. At this point the regulation of data may be one of the hardest hurdles to overcome, and one that puts companies in an awkward position of choosing between privacy protection and profits.
Sven Hughes, Chief Executive at Verbalisation believes: “The collection of people’s personal information and data is not uncommon and if done ethically and legally then there should be no problem.” In Facebook’s case Sven tells Lawyer Monthly that as the CEO, Zuckerberg is “solely responsible for all for corporate responsibility and accountability.” However, the aim of positively influencing these aspects of a business must be in direct correlation with profits, therefore this could be a long-term conflict Facebook must find a solution to, before government designated regulation becomes imperative.
According to Fortune experts, venture capitalist Albert Wenger believes regulation could actually be beneficial to larger companies, as they will be the only ones able to afford infrastructure and changes in operation that adapt to the new rules. One would think that regulating companies when it comes to data use, tax avoidance, buyouts and takeovers, would level out the playing field, allowing all tech firms to compete evenly, but a danger lies in the capacity of the bigger firms to overcome regulation, and the incapacity of lesser firms to their heads above water. So, while regulation could bring long-needed relief to privacy and tax issues, competition could suffer, putting the likes of Amazon and co. in better positions that they were in the first place.
In a recent tweet, Donald Trump stated he’s had his “concerns with Amazon long before the election. Unlike others, they pay little or no taxes to state & local governments, use our postal system as their delivery boy (causing tremendous loss to the US), and are putting many thousands of retailers out of business!”
I have stated my concerns with Amazon long before the Election. Unlike others, they pay little or no taxes to state & local governments, use our Postal System as their Delivery Boy (causing tremendous loss to the U.S.), and are putting many thousands of retailers out of business!
— Donald J. Trump (@realDonaldTrump) March 29, 2018
Donald Trump, alongside many others, still questions the clear business advantages Amazon & Apple have over their competition, one of the biggest of these being sales tax, and according to Reuters, aims to draw up policies that restrict the further expansion of such retail giants. To reach this aim however, it looks like the rules may have to be tailored to the companies in question and applied as individual cases. Is this fair? Bezos and Cook probably wouldn’t think so.
Another side of the regulation discussion is in the monopolisation of innovation itself. Who would you say dominates the market when it comes to new tech? Fortune reports that Patent expert Elvir Causevic believes big tech firms have the huge benefit of being able to abuse the patent system to buy and stifle innovation. So, on the back of Jeff Bezos’ comments on finding a balance between regulation and innovation, it’s clear that striking said balance is easier said than done. Alastair Johnson, Founder and CEO of Nuggets, told Lawyer Monthly that in his opinion, Facebook could put itself at the forefront of data storage innovation, and begin to “explore methods of decentralisation for the storage of sensitive information.”
He says: “Technologies like blockchain have opened the door to individuals being able to maintain complete control of their own data, without needing to store it in attack-prone centralised data silos owned by companies.” Perhaps the solution to one regulatory system is therefore the fuel for another.
Can Amazon be regulated?
Perhaps eliminating the potential for FAANG like companies to buy out smaller firms, beat all others to patent filing, or absorb the innovation of start-ups could provide opportunities for even play, but it would take time. Time the public isn’t prepared to wait or cede, they want a solution here and now, hence putting Zuckerberg in the naughty corner and expecting the problem to somewhat go away.
Whether it be data protection, patents & innovation, antitrust law or tax avoidance, if even a slice of the regulatory cake is successfully baked, will it taste good? Unfortunately, pressure from an outraged public, paired with the drive of policy makers to score politics points, may provide a recipe for disappointment. Even a well-thought out plan could leave loopholes for corporate lawyers to squeeze through if put together under these conditions.
Written by Christof Höhne, Partner at EIP
The race for patenting ‘self-driving’ cars is on! From Audi to Google, we have seen an increase in patent applications from influential companies, racing to get their invention on the streets first. With the future of driving shifting to fifth gear to change the way we see cars, Christof Höhne speaks on how this has impacted IP.
Electric cars are considered the automobile future – their development and parallel patenting is heavily incentivized by governments already pushing for quotas on electric cars: China, for instance, envisions as of 2019 a 10% quota from car manufacturers selling cars in China.
Innovation and advancement of cars does not stop at electric drives; the innovation race to fully autonomous driving vehicles is on. Significant research and development work, documented by an increasing number of patent applications in the field is going on. Ambitious goals of manufacturers envisage the availability of fully autonomous driving vehicles as early as 2020.
The development of autonomous driving does not start from scratch: A basis for this technology has been laid in patented telecommunication systems and car assistance systems available already today. Accordingly, while it may be a common perception that autonomous driving is a thing of the future, many cars of today already feature its very basics, such as ESC (Electronic Stability Control) or automatic distance control. These current assistance systems predominantly rely on data generated by the car, in response to which an action is triggered. The shift in innovation is now to get cars to communicate with each other and infrastructure, such as traffic lights.
Given the economic impact of autonomous driving vehicles, which, as a disruptive technology, may fully replace “classic” cars in the future, it is essential for car manufacturers of today to be a part of this new technology. Having a share in this new field will increasingly rely on access to patented technology. It is thus worth having a look at what the patent landscape looks like:
A recent study of the Institut der Deutschen Wirtschaft of September 2017 has analysed a database at the World Intellectual Property Organization in terms of patent filings between January 2010 and July 2017 related to autonomous driving (5839 patents). According to the study, the top 10 companies in terms of filing patent applications were Bosch (958), followed by Audi (516), Continental (439), Ford (402), GM (380), BMW (370), Toyota (362), Volkswagen (343), Daimler (339) and Google (338).
The results of this study, which is, of course, only a current snap-shot, show two interesting things: German companies are currently among the key innovators; and innovation is not limited to classic car manufacturers – tech companies play an increasingly important role.
The increasing number of non-car manufacturers active in the field is only logic, as autonomous driving is an interplay of different technical disciplines, such as mechanics, computing and telecommunication. Accordingly, it is just as logic that strategic alliances are formed, to progress development. This development is, for instance, focused on platforms, software, navigation and infrastructure. Examples of strategic alliances are: The “Automotive Edge Computing Consortium” (inter alia Toyota, Intel and Ericsson); the sale of HERE maps service from Nokia to a consortium of BMW, Daimler and Audi (recently joined by Intel and NavInfo) and the “5G Automotive Association” (inter alia BMW, Audi, Daimler, Ericsson, Huawei, Intel, Nokia and Qualcomm).
It can thus be observed that several patents from different technical fields (mechanics, computing and telecommunication) are or will become relevant. To provide access to these patents and to ensure interoperability, standardization is key. Standardisation can also facilitate required administrative approval of autonomous driving cars. The importance of standardisation has just recently been emphasized by the European Commission in a communication dated November 29, 2017 (COM (2017) 712), in which it came to the conclusion that:
“Without formal standardisation and SEPs [standard essential patents], there would be, for example, no connected vehicles.”
Accordingly, while individual companies can make big individual contributions to autonomous driving, these have to be viewed in the context of the overall, very diverse patent landscape. This includes questions of freedom to operate and value of the invention. Successful strategies of companies active in the field will thus likely be to continue being part of strategic alliances and to take an active part in standardisation.
Christof is an attorney-at-law and head of EIP’s Düsseldorf office. The main focus of his work is patent litigation with particular expertise in the fields of electronics, pharmaceuticals and mechanical engineering. He also represents clients, alongside patent-attorneys, in parallel opposition and nullity proceedings before the European Patent Office, Federal Patent Court and Federal Supreme Court.
A significant number of EU businesses are sleepwalking towards massive penalties due to a lack of awareness of the scale of the General Data Protection Regulation (GDPR) data collection challenge. This is a central finding of a major report released today by Senzing.
The research – Finding the Missing Link in GDPR Compliance – is based on the views of more than 1000 senior executives from companies in the UK, France, Germany, Spain and Italy. It finds that, on average, a company will get 89 GDPR enquiries per month, for which they will need to search an average of 23 different databases, each taking about 5 minutes. The total time spent simply looking for data per month will be more than 10,300 minutes (172 hours) equating to over 8 hours of searching per working day - or 1 employee dedicated solely to GDPR enquiries.
The issue is even more pronounced for large companies. These expect to get an average 246 GDPR enquiries per month, for which they will need to search an average of 43 different databases, each taking more than 7 minutes. They will spend more than 75,500 minutes per month (1259 hours) which equates to nearly 60 hours of searching per working day - or 7.5 employees dedicated solely to GDPR enquiries every day.
The data collection challenge is exacerbated by a significant proportion of businesses which admit to not being confident about where their relevant data is housed or being able to account for all their databases. More than 1 in 10 (12%) companies say they are not confident that they know where all their data is stored; less than half (47%) are “very confident”. 15% of businesses are not confident that they have accounted for all the different databases containing personal/customer data, with only a third (35%) stating they are “very confident”.
Jeff Jonas, Founder and CEO, Senzing, says: “These findings reveal the true extent of the GDPR compliance challenge. Businesses will be faced with a mountain of data to trawl through - the end result will be a significant time and personnel cost and a great risk of missing records or worse, including the wrong records. Whilst this time requirement is most onerous for large companies, they have greater resources at their disposal. Relative to size, SMEs face a similarly gargantuan task.”
Although 44% of companies say they are “concerned” about their ability to be GDPR compliant – rising to 60% in the case of large companies – many businesses are demonstrating a dangerous lack of awareness about GDPR and overconfidence that they will not be affected. Only a third of companies (35%) are aware that the potential financial fines for non-compliance, which in the worst cases can be €20 million or 4% of global annual turnover, are very severe. An alarming 30% say that financial penalties will have no impact at all; 15% say that they “don’t know” about the impact of financial fines.
Smaller businesses appear to have less appreciation for the seriousness of GDPR non-compliance. A greater proportion of large companies than SMEs understand the severity of the impact of the financial fines. 38% of SMEs and 29% of micro businesses recognise that the financial penalties could have a severe impact on them compared to almost half (47%) of large companies.
This divide between the attitudes of large and small businesses is evident in their planning for GDPR. A quarter (27%) of SMEs and half (50%) of micro businesses say their current set up is optimum and they do not need to make any changes to their operations, compared to just 16% of large companies who believe this. On average, 38% of companies do not intend to take any preparatory action. However, 39% plan to overhaul their IT/customer data systems and a further 15% intend to hire data analysts to collect data. Again, larger companies are more proactive; two thirds (64%) will overhaul their IT and a third (33%) will hire analysts.
Jonas comments: “Many businesses appear to be sleepwalking towards a GDPR abyss. The fines that can be levied for non-compliance will be potentially terminal to some organisations and even the largest companies – and certainly their shareholders – will feel a significant impact. A huge number of companies simply don’t understand the dangers of non-compliance – with smaller firms apparently particularly unaware. “The fact there is such a distinction in the level of confidence between large and small companies in their existing data collection set up is disturbing. It suggests strongly to us that SMEs and micro businesses are seriously underestimating the impact that GDPR will have on their systems and are demonstrating misplaced optimism.”
Based on responses, Senzing calculates that a quarter (24%) of EU companies are “at risk” in terms of being GDPR compliant. A further 36% are deemed “challenged” by the regulation, with only 40% being classed as “ready”. Taken as a proportion of all businesses operating in the EU, this could translate into tens of billions, if not hundreds of billions, of euros in fines.
Jonas adds: “You can’t search what you can’t find. Finding out who is who and where their data is should be the first principle of GDPR compliance. Our worry is that, in investing in systems, processes and personnel, many companies are attempting to reach bases two, three and four without first getting to first base. These findings point towards the fact that the missing link in GDPR compliance is single subject search. Companies are overlooking the urgent need to be able to perform a single smart subject search to find out who is who in their data. Without this, the critical enabler of GDPR readiness, many businesses will be unable to meet the demands of GDPR.”
To address this single subject search gap, Senzing is launching G2 for GDPR. This software was developed to enable organisations to resolve who is who in their data, quickly and cost effectively, factoring in multiple databases, erroneous inputs, misspellings, duplications and different names and aggregating everything relevant for one data subject. This is designed to facilitate GDPR compliance.
(Source: Senzing)
As the world becomes ever more polarised along the political party lines, has politics permeated the workplace to such a degree that if your views oppose your employers you could find yourself ostracised, discriminated against, or even out of a job?
Politics. The mere sound of the word can cause problems prior to even delving into the topics at hand, yet, it is what most nations are built on. You can choose to ignore the topic, claim your views are independent from the left and right wing, but you will fall somewhere on the spectrum. And in the age of social media where hard line opinions are freely expressed largely without recrimination it’s likely that wherever you land, there is someone on the opposing end waiting to jump at you.
Nonetheless in the developed world, we stand strong on the notion that we have a right to freedom of speech, but are we shackled to a post that will only let us stretch so far?
But could that freedom of speech cause more issues in the modern age, and in the workplace?
To kickstart 2018 the right way, James Damore, former employee at Google, filed a lawsuit to sue his old workplace for firing him for being ‘intolerant of white male conservatives’. This was followed from the leaked memo where Damore stated that women are more ‘neurotic’ and argued that psychological gender differences could explain why 80% of Google’s engineers, and most of the company’s leaders, are men. A viewpoint that has received some support is from controversial psychologist Jordan B Peterson.
A small snippet of the memo, to spark some thought: “I’m simply stating that the distribution of preferences and abilities of men and women differ in part due to biological causes and that these differences may explain why we don’t see equal representation of women in tech and leadership”, wrote Damore.
Google waved goodbye to Damore on the basis that he was advancing ‘harmful gender stereotypes in the workplace’ and following being adopted by right-wing media as a victim of Silicon Valley’s liberal bias, Damore retaliated on the basis that white, male conservative employees at Google are ‘ostracized, belittled, and punished’. So, was Google right in firing Damore, should he have kept his controversial opinion to himself, and are we entering a new era where politics can result in dismissals?
Was Damore discriminated against?
An integral aspect of UK labour law is that it is unlawful to discriminate against a person based on their age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation. It does not mention freedom of speech, however, The Human Rights Act (HRA) specifies that individuals should have the right to freedom of expression, but there are limitations.
The Employment Equality (Religion or Belief) Regulations also provide protection for individuals against any unfair treatment or abuse due to their “religion, religious belief or similar philosophical belief”.
Interestingly, during test cases, the aforementioned legislations were not enough to cover extreme right-wing views[1].
Hannah Cottam, Group Director of recruitment firm Sellick Partnership enlightens us: “Companies must ensure they are not standing in the way of free speech amongst their employees. Not only does it display that they have an opinion on important matters, but it also shows they have a strong character and are not afraid to speak up, which is important for me when looking for candidates that are the right culture fit.
“I would however stress to all candidates that they need to be careful, and advise against airing any extreme viewpoints on open platforms that may go against the values and morals of their place of work.”
Freedom of speech
So, aside from perceived sexism, generalising and stereotyping the sexes, Damore didn’t really do anything that wrong to get him fired; he has the right to freedom of speech.
It is a similar situation for those in the US, too. In the US The First Amendment (Amendment I) is often associated with freedom of speech, but ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech… or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.’[2], does not extend to speech protections in the workplace; it addresses actions by the government to impede speech and does not relate to the private sector.
Federal laws prevent employers from firing employees for the same reasons as the UK Labour law, and again, does not imply any protection for political viewpoints; however, there are a few states that make it illegal to discriminate an employee based on their political activity, unless it interferes with company values and the functions of its business.
Unpopular opinions can cause rage, but it also provokes thought. How any society tolerates disfavoured notions reflects where we are at in progressing forward, and by firing him, Google are acknowledging that women are just as capable as men, and staying true to their values…or did Google buckle under the pressure that Damore expressed arguably sexist views, so out of fear of public retaliation, they chose to fire him and avoid a negative backlash on their business? We could go back and forth and debate on this all day long, but what we really want to know more about is who has the stronger leg to stand on? Legally, by only slightly delving into this issue, it does seems like Damore’s is far weaker.
“Employers must be very careful when using the personal viewpoints of employees as grounds for dismissal, and ensure that whatever they uphold are in line with their company values. Whatever these values may be, it is important for companies to uphold their policies across the board and stay true to these morals.”, explains Hannah.
Which they did, as the CEO Sundar Pichai stated, without an ounce of regret, that their decision to fire Damore was not based on his political view: "I regret that people misunderstand that we may have made this [decision] for a political position one way or another," Pichai said in an interview.
According to Pichai, Damore was fired because his memo violated Google's code of conduct, and that it was “not okay” to “advance harmful gender stereotypes in our workplace.".
As Hannah stated: “Only when these values and morals are put in jeopardy can a company investigate and take action, however action should only be taken if the company feels their reputation or employer brand is at stake. Companies should set out a clear set of values, and a code of conduct championed by the Senior Management Team that is readily available to all current and prospective candidates that details what is and is not appropriate. This should be enforced across the organisation, and any instances where the origination feels these have not been met should be formally investigated.”
Damore will argue that Google has violated Californian law, by singling out, mistreating and terminating employees that expressed views deviating from the majority view.
Nonetheless, the lawsuit has been filled for by Dhillon Law Group[3], who aims to represent: “all employees of Google discriminated against (i) due to their perceived conservative political views” in the last four years, “due to their male gender” and/or “due to their Caucasian race” in the last year”.
It is an interesting case for us to keep our eyes on, but what is certain is that there is now a chance you could get fired for your strong political views. If you would like to keep your job, perhaps keeping strong, ‘controversial’ (sexist, racist, or anything demeaning and derogatory) opinions to yourself in the workplace, is the smarter way to go, because legally you are unlikely to succeed in convincing the courts that being a conservative cost you your job.
[1] https://www.thehrbooth.co.uk/blog/hr-news/is-there-really-freedom-of-speech-in-the-workplace
[2] https://www.law.cornell.edu/constitution/first_amendment
[3] https://techcrunch.com/2018/01/08/james-damore-just-filed-a-class-action-lawsuit-against-google-saying-it-discriminates-against-white-male-conservatives/?ncid=rss
Billionaire investor George Soros comments on big tech and social media during a speech at the World Economic Forum's annual meeting in Davos, Switzerland.
Among some of the biggest divorces and damages claims this year, Lawyer Monthly has picked out 10 really interesting and influential trademark battles that took the spotlight in 2017. Some of these have major implications for brands and in some cases, global industries, while others are a bit of a tickle for IP lawyers far and wide.
Let’s jump straight in with our picks for the top 10 trademark battles that swept 2017.
Kicking off this top 10 is DC Comics, which recently decided to push stern opposition against a Superman Jesus image, which was put in for trademark application by Stacey Lane Holmsley in November 2016. The application came under the categories of “Decals; Decorative decals for vehicle windows; Magnetic decals; Temporary tattoo transfers.”
It’s obvious the image strongly reflects the classic superman shield, a DC Comics trademarked image. In June DC’s lawyers took note and filed for an extension on the opposition time, challenged the trademark and were surprised to see Stacey Lee stand his ground. The documents currently with the courts suggest grounds for deceit and public confusion.
Let’s see how this one pans out.
In the case of Google vs. Equustek, some weeks back a Canadian Supreme Court ordered Google to eliminate a number of search results from a previous distributor that was reportedly using its sites to sell, illegally, the defendant Equustek Solutions’s IP. On November 2nd 2017, a California district court granted Google’s request for a preliminary injunction preventing US enforcement of the order. Below, Gwilym Roberts, Chairman and Partner at Kilburn & Strode, discusses the Canadian Supreme Court's decision and what it means for the prospects of more global injunctions.
As walls spring up everywhere internationally, we are seeing a counter-intuitive move towards cross-border injunctions in Intellectual Property cases. IP is becoming a test bed for remedying infringement in multiple jurisdictions, with the internet at the root of the issues.
Two recent developments are at the forefront – firstly the ruling by the Supreme Court of Canada in Google vs. Equustek, and secondly a draft EU convention on the recognition and enforcement of foreign judgements. Each deals with cross-border issues in a different way – the Supreme Court of Canada (SCC) by imposing an injunction which it can enforce at least in Canada if it is not obeyed globally, and the other by asking EU governments to actively sign up to mutual recognition. And each raises practical and legal issues.
In the Google case, the facts were straightforward. Canadian company Equustek Solutions sued distributor Data Link Technology Gateways for listing its products on Google as their own. The facts were agreed and so Google’s case was merely that it was not even a party (which was quickly dismissed) and that there was a “freedom of information” angle which could be breached by an injunction being awarded in other jurisdictions even if not in Canada. Google cooperated initially by de-indexing pages on Google.ca but the SCC issued a global “Google Order” requiring Google to de-list around the world.
Many rights holders have welcomed the decision as providing fair protection, but free speech organisations characterise the decision as “race to the bottom”. The SCC itself has indicated that if Google can demonstrate that the injunction does cause problems in other jurisdictions it will reconsider but points to other instances of global injunctions that have seemed acceptable including the take down of defamatory material, copyright enforcement and the EU “right to be forgotten”.
The EU meanwhile continues to strive for multi-territory enforcement. The current draft EU recognition convention proposes cross-border enforcement for a range of rights and, for now, leaves IP open for discussion. Its principal IP target may well be online infringement of the type dealt with by the SCC, but broader rights, including patents, are still up for grabs.
In any event, IP emerges as a common denominator for cross jurisdictional disputes, fuelled by the ease of infringement on the web. The internet after all provides perfect data liquidity, with IP acting as its legal vessel. However, IP law sharply defines territorial boundaries and problems emerge with the combination of the internet, information, and intellectual property.
Long before the draft recognition convention appeared, assorted enforcement initiatives had been tried in relation to IP – pan-European patent injunctions faded, the EU Criminal Enforcement Directive for IP floundered and the proposed Unified Patent Court, having tripped over Brexit, has now landed hard on a German constitutional challenge.
For now, therefore, it may well be that judicially-driven pan-territorial remedies may be the practical option rather than Directives. This raises practical considerations for rights holders. Google’s example casts light on this – Canada is evidently a huge market for them, they can’t pull out, therefore, they either need to observe the SCC injunction globally or face sanctions at least in Canada. So for other, less international companies, a consideration of where their headquarters are based may be highly relevant. Setting yourself up in a country which is less likely to issue an injunction, particularly a global one, may make some sense if you have the freedom to drop out of other risky territories.
At the moment, it remains to be seen whether courts will enforce an injunction issued in another jurisdiction, and it seems fairly unlikely without some form of international convention of the type proposed by the EU. However, economically speaking, global injunctions clearly still have teeth if they issue in commercially important territories.
As elsewhere, the internet has provoked a major rethink of how businesses operate internationally. Mixing the internet, unlimited data and the highly territorial nature of IP law creates a potent cocktail. Even in the absence of government-level cooperation we can expect to see ever more creative legal/commercial solutions to global disputes, with IP at the forefront.
The San Francisco federal court heard on Wednesday that Waymo, the self-driving subsidiary of Alphabet Inc., are asking for a payment of $2.6 billion for a single trade secret they claim was illegally acquired through an ex-employee.
Uber’s attorney, Bill Carmody made the disclosure during a session between the two companies to ascertain if the trial will begin next month. Waymo are asking the judge for more time to examine new evidence with Uber, contesting that their opponents are trying to delay the trial due to a lack of evidence.
The case stems from Uber’s acquisition of Otto, a self-driving lorry company masterminded by Anthony Levandowski following his departure from Google. Waymo asserted in an earlier case this year that Levandowski had downloaded over 14,000 proprietary design files from Google six weeks prior to his departure to set up Otto.
Otto was quickly acquired by Uber and Waymo have claimed that Uber have now used this information obtained illegally to develop its LiDAR circuit board which is used to aid the functionality of its own self-drive cars.
The case has already resulted in the dismissal of Levandowski, who had been at the forefront of Uber’s self-driving cars since Otto’s sale. Uber have claimed that they had no knowledge of the stolen confidential files and no technology from Waymo has made its way into their own cars.
The full amount of damages sought by Waymo has not yet been divulged, but given that the amount revealed by Carmody on Wednesday is only one of nine trade secrets allegedly stolen, it’s safe to assume the total figure will be well beyond $2.6 billion.
The trial was originally scheduled to begin on 10th October, however, Waymo are seeking a new start date of 5th December. The judge has yet to issue his ruling, but is expected to do so by 3rd October.
Last week lawyer monthly reported on the infamous Google Diversity memo that circulated from within the corporation and sparked much backlash worldwide. The employee that posted the memo, James Damore, was subsequently fired and Google, or specifically Pichai, said: “our co-workers shouldn’t have to worry that each time they open their mouths to speak in a meeting they have to prove that they are not like the memo states, being agreeable’ rather than ‘assertive’, showing ‘lower stress tolerance’ or being ‘neurotic’.”
Lawyer monthly asked Your Thoughts on the matter, and has below listed several comments sent in by the experts.
Emma Bartlett, Partner, Charles Russell Speechlys:
The infamous “Google diversity memo” crystallises stereotypical views rejecting the need to take positive action to improve gender diversity in STEM. The way the Googler chose to share his views was ill-considered. His internal reputation was severely damaged. If he wanted to understand or challenge Google’s diversity objectives, he could have found a more professional way of doing so. Not everyone has to agree on diversity matters. In fact, if views go unchallenged, then the creativity which diversity champions promote could be lost as employers plot measures to improve workplace representation. However, certain views – such as should we be improving female representation in technology at all given our biological differences – should be carefully raised to avoid offending primary principles of equality and stated principles of the employer. The Googler instead created a hostile environment for women in expressing his views as he did.
The Googler’s memo is a massive step back to the attitudes which lead to women being discouraged from taking that path. STEM employers have long recognised worker shortages if recruitment pools are limited to white men. Positive action to improve female uptake in STEM goes right back to primary schools to encourage girls to choose subjects that lead them to STEM university courses.
It’s not a question of freedom of speech; in the workplace, expressing opinions which create an offensive or hostile environment for women (or any workers) constitutes unlawful discrimination. Given that the Googler was senior, it’s reasonable to conclude that he may have not promoted a woman; not because of lack of qualifications, but because of his belief that her chromosomes weren’t right for a technology role.
The same fate could have befallen the Googler had he “privately” posted his comments on social media. If colleagues could have become aware of them, his internal reputation could have been equally trashed. Remember the Apple employee who was fairly dismissed for denigrating Apple products, in breach of Apple’s policies, privately on Facebook forgetting that co-workers were Facebook friends? He could not legitimately have expected his posts to remain private; friends owe no confidentiality obligations. Similarly, a Game Retail manager was fairly dismissed for his prolific offensive non-work related tweets in circumstances where he was followed by 65 of the employer’s stores. His internal reputation was severely damaged.
Jo Sellick, Managing Director, Sellick Partnership:
Google is known for being a forward-thinking organisation with a great employer brand. It is home to a workplace that barely needs to market itself and has potential candidates queuing up for a slice of the Google dream. You would assume, then, that every single employee is of the highest calibre and fully embodies the Google vision. So it was surprising to many when news emerged of a member of staff being fired when he published a company memo which suggested women were inherently less suited to certain tech roles.
Amongst other remarks, the former employee, James Damore, wrote: “The distribution of preferences and abilities of men and women differ in part due to biological causes, and that these differences may explain why we don’t see equal representation of women in tech and leadership.” Google took the decision to fire Damore and the firm’s chief executive, Sundar Pichai, said parts of the memo “violate our code of conduct and cross the line by advancing harmful gender stereotypes”. I agree with Pichai’s decision and believe Google had no other choice. Firms as big as the tech giant should be spearheading the fight against inequality in the workplace and they should have a solid sense of their company values. Whatever these values may be, it is important for companies to uphold their policies across the board and stay true to these morals. This ensures that the right kind of candidate is drawn to the workforce and that everybody is working towards the same end goal.
This is very different to prohibiting free speech in the workplace, which is equally risky. When the EU Referendum took place last year, it was great to hear staff discussing different political views and taking an interest in topical events. I like to see employees who are confident in displaying their personal viewpoints and setting out their arguments intelligently, but this is very different to saying something which you know could cause offence. We strive to have a diverse workforce, which of course includes employing people of differing viewpoints on all sorts of issues. But encouraging staff to express themselves while not offending others can be a fine line, and the onus is on senior management to decide what is and is not appropriate for that particular workplace. This should be set out in a clear code of conduct that everybody reads and understands, so that it does not come as a surprise if the employer takes action against comments that flout the rules.
In terms of Damore’s beliefs, I must express my disagreement and concern that he is assuming such outdated stereotypes when talking about suitability for roles. His assumptions could well cause as much offence to men as they may to women, as gender simply should not come into play when considering whether somebody is right for a job. Yes there is a gender imbalance in the technology sector, but this has nothing to do with biological differences and everything to do with education and how we talk about STEM subjects with children from an early age. If we are serious about equality we need to start educating boys and girls in STEM subjects at a grassroots level and ensure there are plenty of male and female role models working in the sector for young people to admire and emulate. This is a generational change that will take time, but it is entirely possible and initiatives like teaching coding to primary school pupils are extremely encouraging.
Diversity outside of gender is equally crucial and we should introduce mentorships within workplaces that help people of all backgrounds to progress in their chosen career. As National Inclusion Week approaches in September, I am keen to see businesses analysing their company data and seeing just how inclusive and diverse they are and we will be undertaking the same exercise ourselves. Once companies know this information, they can then take steps to address the balance moving forward. Until this kind of action happens we may well continue to see unequal workplaces which perpetuate outdated stereotypes and beliefs.
Jacob Demeza-Wilkinson, Employment Law Consultant, ELAS Group:
This case highlights a few important points for employers. Firstly, and most obviously, it shows the importance of taking quick and firm action where an employee is alleged to have been involved in misconduct. The backlash for Google had they not been seen to take quick, effective and proportionate action could have been particularly severe, and this demonstrates how an employee’s actions can affect the reputation of the business if not dealt with.
Where an employee is reported to have breached a policy or carried out an act of misconduct, it is important to carry out a full and thorough investigation immediately. If you find substance to the allegations, you should then proceed to disciplinary action.
Secondly, the case shows the significance of having in place proper policies and procedures to inform staff what is and is not acceptable in the workplace. Here, Google had a code of conduct which set out clearly what behaviour was acceptable and, as the employee clearly breached this, they were able to act quickly as a result. Where there are no policies and procedures in place, it can often make it difficult to decide what is or is not gross misconduct, whereas a policy outlining what is will make it easier to make the decision and will provide solid supporting evidence should that decision be tested moving forward.
The case therefore shows that in order to manage employees properly and protect the reputation of your business, you should have clear policies in place setting out your expectations for staff, and you should act promptly and effectively when you become aware a policy may have been breached.
David Bradley, Chairman and Head of Employment, Ramsdens Solicitors:
What was James Damore thinking? A doctorate in Systems Biology from Harvard lay behind his attack on the “politically correct” approach by his employer Google to diversity in the workplace. In particular, their policy designed to redress the imbalance between men and women in leadership positions within the tech sector. He has now been fired.
The essence of Damore’s argument, that men and women have different sets of bias, that in summary direct men more towards leadership and women toward team playing has received the criticism it deserves. Damore himself makes clear that not all men and women can be judged on this criteria: so why say it publicly? Diversity is about valuing individual contributions and assessing skills individually and unless there is overwhelming evidence that groups can be defined in a particular way (which there is not), don’t do it! Damore may have thought he was right and entitled to have his say. He has received a salutary lesson that applying a filter to his thoughts may have been as valuable as his view of his own intelligence. Even where we know tomatoes are fruit, we don’t put them in a fruit salad!
The issues do spark a wider debate. Are we too politically correct? Sometimes yes, and it can get in the way of effective management. Some managers and leaders shy away from difficult decisions because the person involved is a man, women, black, white etc. and that is as damaging to the diversity debate as Damore’s diatribe. Effective and confident leaders assess a situation, reflect and act where appropriate, irrespective of bias or the concern that perceived bias can create. You cannot go far wrong following Mark Twain, “it’s never wrong to do the right thing”! The problem is working out what the “right” thing is and on this occasion James Damore came up short.
Sarah Austin, Employment Lawyer, Capital Law:
A new week brings a new high-profile casualty in terms of diversity in the workplace – this time Google.
Google has come under intense criticism this week. An un-named male employee produced a report claiming that the lack of women in tops jobs in the tech industry was due to biological differences between men and women. He urged people to stop assuming that gender gaps imply sexism. He also argued that Google should stop its diversity campaigns – and pursue a path of ‘ideological diversity’.
The author denies that the gender pay gap exists at all. He states that, although in a national aggregate women have lower salaries than men for a variety of different reasons, women get paid just as much as men if they do the same work. Unfortunately for the author, the US Department of Labour disagrees. Google is currently fighting a wage discrimination investigation, following a finding that the company routinely pays women less than men in comparable roles.
Former employees of Google have spoken out on social media, claiming that they encountered similar views in Google. One pointed out that those at the company who share these views are responsible for performance reviews and interviewing people, and claims that they discriminate. According to its own diversity figures published in June, Google’s workforce is 69% male (and 56% white). Women fill only 25% of leadership roles and 20% of technical jobs, such as computer programmers.
Google’s new Vice President of Diversity, Integrity & Governance, Danielle Brown, felt compelled to issue a statement in response to the report. In her statement, she confirms an unequivocal belief that diversity and inclusion are critical to Google’s success. She said: “Part of building an open, inclusive environment means fostering a culture in which those with alternative views, including different political views, feel safe sharing their opinions. But that discourse needs to work alongside the principles of equal employment found in our Code of Conduct, policies and anti-discrimination laws.”
Kate Shorney-Morris, Managing Director, Zest Recruitment & Consultancy:
This is a classic oxymoron. The suggestion in the quote is that the issue of gender inequality and sexism are totally separate issues, yet one cannot exist without the other. Later in the memo, Damore goes on to suggest that women “have more neuroticism” and “higher levels of anxiety” that lead to the “lower number of women in high stress jobs.
This case highlights two key points - gender equality is still alive and kicking, and that not enough is being done to eradicate it from the workplace even in an industry famed for its meritocratic structure and open culture. Unfortunately, the legal sector is also guilty of failing to address the issue.
Indeed, figures published by The Law Society stated that while almost half (48.8%) of all practicing certificate holders in England and Wales are women, less than 1 in 3 (29%) are partners with the number even lower in the Magic Circle.
So while the legal sector may proclaim that an ingrained glass ceiling does not exist, a quick look at the figures suggests otherwise. Equally, there are many law firms banging the drum for gender parity and diversity but it is clear they are not doing so in unison. Of course, we cannot say with absolute certainty that the low level of women occupying senior roles within the profession is a direct consequence of gender inequality per se, but it is a key contributor.
The legal sector is in the unique position to lead from the front by dispelling the many myths that persist about gender and diversity and extolling the obvious benefits to creating a level playing field for everyone, regardless of gender, ethnicity, orientation, religion or any other pigeonhole we seem so quick to categorise an individual.
The case is a stark reminder that businesses still have some way to go before we reach a state where diversity is no longer an issue, whether in thought or in practice.
Jim Wright, Partner, Shulmans LLP:
James Damore was the author of the Google memorandum that said “we need to stop assuming that gender gaps imply sexism” and “abilities of men and women differ in part due to biological causes.” Google dismissed Mr Damore after his internal memorandum was leaked to the press.
On paper, Google has a diversity issue. Its own data shows its workforce is 69% male and only 20% of its technical jobs are held by women. This, in part, justifies the wage discrimination investigation by the US Department of Labour that Google currently faces.
Theoretically, raw data demonstrating a gender pay gap can be explained by “material factors” as recognised by UK law, where sex discrimination is in no way associated with decisions affecting remuneration and employee reward.
There is no legal support for Mr Damore’s contention that biological causes justify difference in treatment. The UK’s Equal Pay Legislation does not permit this to be a material factor in justifying differential pay rates.
It is likely that Mr Damore’s contentions demonstrate a stereotypical perception as to the allocation of roles based on gender – his comments about biological differences can only taint his supposed justification with sex discrimination.
Although Mr Damore’s rapid dismissal may help Google defend itself from complaints, his comments could be interpreted as demonstrating that the business has a systemic pay discrimination issue and a culture that refuses to try to tackle such matters head on. As well as legal liability, Google is undoubtedly concerned about negative publicity.
Mr Damore’s comment that “we need to stop assuming that gender gaps imply sexism” is wrong. In addition, it demonstrates significant inefficiency on Google’s behalf; Google appears able to find talent from only part, not the whole, of the potential workforce.
Emma Tegerdine, Associate and Employment Solicitor, Cleggs Solicitors:
From an employment law perspective this case is relatively cut and dry – in so much as the employer was left with very little choice as to how to deal with such a flagrant and public breach of its diversity and equality policy by one of its employees.
Most diversity and equality issues which arise in the workplace are not as blatant as this, but the beliefs set out in the memo James Damore wrote, which he circulated to his colleagues, were so outdated and shocking that Google, as the employer, was left with no other option but to take disciplinary action. If Google was to have taken any other action it may have looked as if it was not taking the issue seriously enough, and was trying to brush it under the carpet.
Mr Damore appeared to believe he had the right to freedom of speech - meaning that had the right to have his opinions heard – no matter how discriminatory his beliefs may be. This erroneous belief is shared by many employees in the UK. However, employees are required to comply with their employers’ policies, including polices relating to equality in the workplace, and do not have the right to share discriminatory views at work.
In the UK, the Equality Act 2010 would apply, with the potential for sex harassment claims being submitted against both Mr Damore and his employer, by employees who were offended by the memo. Claims could be brought on the basis that the circulation of the memo was ‘unwanted conduct related to sex’ which had the ‘purpose or effect of violating the employee’s dignity, or creating and an intimidating, hostile, degrading, humiliating, or offensive environment’ for them. If Google had failed to act, this would have encouraged other employees with similar beliefs to air their views and substantially increased the risk of such claims.
Google has a male-dominated workforce and has recently come under scrutiny for the alleged pay gap between male and of female employees, so it has to be particularly careful when it comes to employment diversity issues.
The bottom line here is that the publishing of this memo was such a clear breach of Google’s policy that there was little else it could have done but dismiss Mr Damore. Had I been representing the employer, I would have advised that swift and strong disciplinary action was taken. Given that Google has already come under investigation for gender bias in the workplace, it needed to take this very seriously, so I believe the correct outcome has been reached.
Mike Hibbs, Partner and Head of Employment, Shakespeare Martineau:
The leaked internal memo from Google has made headlines across the globe recently, however underneath the debate about whether Google was morally right to dismiss the employee or not, lie more serious issues regarding freedom of speech, unfair dismissal and brand reputation.
Whilst a company is often entitled to summarily dismiss an employee if they are found to be in serious breach of a code of conduct, as was the case with Google, it is highly important that the code of conduct reflects the culture, expectations and corporate ethos of the business.
The codes of conduct need to strike a careful balance between allowing freedom of expression (which is a fundamental right of all UK citizens enshrined under Article 10 of the European Convention on Human Rights), and protecting the rights of other individuals and employees not to be subject to harassment or inappropriate comment.
Google said that the memo perpetuated gender stereotypes towards females which violated its code of conduct. However, Google is a business that generally promotes the free use of content so the snap decision to fire a member of staff for criticising a company diversity policy could seem to stand at odds with its core values. Indeed, it could be argued that in choosing to dismiss the employee, Google has chosen to discriminate against the individual by not allowing him to express his own opinion.
The seniority of the role of the individual within the organisation and the type of communication is significant when choosing an appropriate course of action. If it was the CEO who had sent the memo then being publically seen to hold the individual accountable may be reasonable to protect a company’s brand image and values However, where it is a relatively low-level employee expressing a view via an internal communication channel, dismissal may not be quite so easy to justify.
In such cases it is vital that businesses have a properly drafted social media policy which considers the severity of different actions. It is also very important for employers to consider whether a punishment other than dismissal is more reasonable, such as a final written warning.
The Google case should stand as a warning to employers. Once a worker is dismissed the situation goes beyond the organisation’s control. This case, rather ironically highlights that one of the biggest threats to businesses in the age of social media is not always the risk of an employment tribunal claim, but the adverse publicity it attracts when things go wrong.
Liz Timmins, Associate, Doyle Clayton:
Google should be justified in dismissing their employee whose internal memo stated: "we need to stop assuming that gender gaps imply sexism." Although the employee is right that a gender gap is not, in itself, evidence that women are being discriminated against in the workplace, his memo went further, arguing that the abilities of men and women differ in part due to biological causes. The employee seems to be suggesting that women may be incapable of doing certain jobs such as tech and leadership roles. Such stereotypical assumptions are a significant factor in the under-representation of women in some roles and are entirely unacceptable in the workplace. Indeed, the Equality and Human Right Commission’s Code of Practice makes it clear that stereotypical assumptions must be avoided during recruitment and promotion exercises. The memo will therefore be a huge concern for Google, particularly as colleagues who are offended by it could claim harassment and Google could be held liable unless they can show they took reasonable steps to prevent harassment occurring. It is therefore not difficult to see why Google considered that it was necessary to dismiss the employee concerned.
We would also love to hear more of Your Thoughts on this, so feel free to comment below and tell us what you think!
