The Alphabet Workers’ Union filed a lawsuit against Google with the National Labor Relations Board after Google management told workers to “refrain” from talking about its pending antitrust case.

The union charges that Google issued an “overbroad directive” about discussing the case with employees, according to a copy of the charge filed in August and viewed by The Verge. On August 5th, just after Judge Amit Mehta issued his decision finding Google to have an illegal monopoly, Global Business President Kent Walker sent an email (also reviewed by The Verge) instructing employees to “please refrain from commenting on this case, both internally and externally”. Walker sent a similar message early in the trial last fall, Business Insider reported at the time.

That could be a problem for Google if the NLRB concludes that Walker’s directive could curtail protected concerted activity: actions by two or more employees together that are protected under labor law, such as discussing working conditions. “I could certainly imagine that there would be ways in which the case would ultimately be about working conditions,” says Charlotte Garden, a University of Minnesota professor who specializes in labor law. The DOJ has since suggested that fixing Google’s anticompetitive damages could mean something as drastic as a breakup of its Android and Chrome businesses — something that could plausibly lead to significant changes for workers at those units.

However, Garden says there are some discussions employees may have about the case that may not be protected, such as thinking about how management should respond to the government. The NLRB will also weigh Google’s legitimate business interests — perhaps including controlling the course of its own litigation or just authorizing certain spokespeople to speak for the company — and how likely management’s statements are to freeze protected conversations between employees.

“We respect the rights of Google employees to speak about the terms and conditions of their employment,” Google spokesman Peter Schottenfels said in a statement to The Verge. “As is standard practice, we simply ask employees not to talk about pending litigation on behalf of Google without prior approval.”

Even if Walker’s email didn’t include a blanket ban on talking about the antitrust case, the NLRB could still find it a violation if it concludes it’s likely to freeze employee speech, Garden says. The Board will assess how employees interpreted the email and were likely to interpret the email – either as general guidance that would not be applied, or as a line not to cross or risk getting into trouble or giving up opportunities future, she says. To do so, Garden explains, the NLRB would look at employees’ own reactions and interpretations of the directives and how the company has responded when workers have gone against such directives in the past.

Stephen McCurty, a senior software engineer at Google and communications chair of the Alphabet Workers Union, sees his employer’s past actions as a warning. “I believe the company has a history of silence or retaliating against workers who speak out about their working conditions or who complain to the company about things they believe are wrong or unethical. So even though the language is kind of a corporate ‘please refrain,’ I think we can all see what has happened to some of our colleagues in the past who have raised concerns about various issues.”

McCurty pointed to the massive walkout in 2018 in the wake of the #MeToo movement. Two of the organizers claimed retaliation for their role in the demo (which Google denied) and eventually left the company. Another former Google engineer said The Verge in 2019 that she was fired for creating a browser pop-up for employees that informed them about the protection of their work. A Google spokesman at the time would not confirm the employee’s termination, saying it fired someone who “abused privileged access to modify an internal security tool” but that it was not a matter of content. “He doesn’t seem that bothered that it could happen in this situation,” McCurty says.

McCurty doesn’t really know what his colleagues think about the outcome of the case and what remedies might affect their jobs because he says it’s not really discussed. He doesn’t even have much of an opinion on the DOJ’s suggested remedies so far, but says being able to talk to his colleagues would make it easier to get an informed opinion about the likely effects on workers.

The case could take some time to resolve, if the NLRB does decide to take it up. Garden says a regional office will first investigate the charge to determine whether to move it forward — although many cases are resolved before that happens. NLRB spokeswoman Kayla Blado said The Verge that his Oakland office is investigating the charge, which was filed Aug. 15. The The NLRB says it usually takes seven to 14 weeks to determine the merits of a charge, which could trigger a case before an administrative law judge if the government chooses to pursue it. Meanwhile, Google and the Justice Department are due back in court in April to discuss what remedies the judge should impose to fix Google’s anti-competitive effects.