As many tech companies faced the tough decision to lay off thousands of workers last fall, Elon Musk’s chaotic and even antagonistic approach to his newly acquired Twitter workforce made those layoffs particularly painful. He may have gloated in his “hardcore” approach to slashing jobs, but his moves sparked a mobilization of worker self-advocacy and litigation that serves as a cautionary tale for any company considering aggressive terminations.
February 23, 2023
When the Boss is “Hardcore,” Workers Respond with Confidence
Elon Musk’s Twitter Mess is a Cautionary Tale for Employers and an Organizing Opportunity for Workers
Pawanpreet Dhaliwal, Menaka Fernando, Kaelyn Mahar and Jahan Sagafi
Musk’s Actions at Twitter
Beginning on November 4, 2022, Twitter laid off half its workforce of over 6,000 employees. Employees first learned that they had been laid off by being locked out of their employee accounts without warning or explanation. In connection with the layoffs, Musk and other Twitter leaders made statements that have formed the basis for allegations of bias against workers with protected traits, such as disability. Twitter’s rushed actions have led to legal exposure. Under Musk’s oversight, the company appears to have reneged on an earlier commitment to provide a robust severance package, including two months base salary, a pro-rated bonus, the cash equivalent of equity that would have vested within three months of the layoff, and cash contributions for health care continuation), a guarantee that many Twitter employees (a.k.a. “Tweeps”) say they relied on to stay at Twitter and forego other employment opportunities. Many Tweeps on parental or disability leave were shocked to learn that they had been selected for layoffs during especially vulnerable times in their lives. One high-level Twitter leader described engineers who had initially been laid off as “weak, lazy, and unmotivated.” On November 10, 2022, Musk categorically banned remote work at Twitter and informed employees that they were expected to work 40 hours a week in office, which could be unlawful if applied without regard for workers’ needs for disability or caregiving accommodations. And on November 16, 2022, Musk emailed Twitter employees with an ultimatum: they must be “extremely hardcore” and “[work] long hours at high intensity” or leave , a clear message that workers with protected traits took to mean that they were no longer welcome at Twitter.
Lessons for Employers
Twitter’s botched mass layoff underscores the importance of several key compliance requirements for companies contemplating mass terminations, including satisfying the requirements of the Worker Adjustment and Retraining Notification (WARN) Act and comparable state laws; abiding by laws specific to severance and release agreements; honoring contractual obligations and promises made to workers; and ensuring that layoffs are not a cover for discrimination against protected workers.
Notice before Termination
The WARN Act requires that employees receive notice of termination and applies to workers at most public employers with 100 or more full-time employees. Its protections cover mass layoffs, like those at various tech companies. Specifically, under the federal WARN and California state WARN laws, employers must provide employees with 60 days’ written notice of the layoff (90 days in New York). With some exceptions, if an employer fails to provide proper notice, it may be liable for up to 60 days’ worth of back pay and benefits, plus related civil penalties.
Time to Consider Severance
Many laid off workers also enjoy the protections of the federal Older Worker Benefit Protection Act (OWBPA) and California’s SB 331, which set the minimum time a company must give an employee to consider any severance or other agreement containing a release of claims. The OWBPA covers workers aged 40 and over at companies with 20 or more employees providing them at least 45 days to consider a severance agreement if they are laid off alongside at least one other employee. Workers protected by the OWBPA also have seven days after signing a release to revoke their signature. Similarly, SB 331, enacted in 2021 as part of California’s “Silenced No More” bill, requires employers to give all employees at least five business days to consider a release agreement. Both laws require an employer to inform employees of their right to consult an attorney. Moreover, companies should be careful about what they publicly promise to employees in terms of potential severance to induce them to stay through a reorganization, as reneging on commitments may lead to “bait-and-switch” claims.
Discrimination Claims
A mass layoff cannot be an excuse for terminating employees based on protected traits like disability or gender, or for their use of protected family or medical leave. In Twitter’s case, Musk and other Twitter leaders have made statements and taken company-wide actions that have caused some to question whether bias against workers with disabilities and caregiving obligations is at work. If employees can prove that Twitter singled out employees for layoffs on these bases, Twitter may be liable under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act, and/or their state law analogues. In addition, layoffs, especially those that are crudely handled, sometimes motivate workers to challenge ongoing unlawful practices that predated the terminations. For example, workers may step up to sue for pay discrimination under the Equal Pay Act and similar laws.
Employee Empowerment
On the employee side, the Twitter layoffs have highlighted the vitality of organized worker power. In the aftermath of the November 4 layoffs, thousands of politically progressive and technologically savvy Tweeps have organized online and in person, in Slack and Signal channels and on Zoom calls. This dynamic collaboration can empower workers throughout Big Tech and beyond to challenge systemic injustice of various kinds. For example, they can share information to compile and analyze pay and demographic data to challenge their employers’ undercompensation of women and people of color, and they can challenge undercompensation due to misclassification, off-the-clock work, and other potential violations.
Conclusion
The mess around the Twitter layoffs illustrates how important it is for employers to comply with the law, behave with basic human decency, and act in a rational, thoughtful manner. At the same time, it shows that workers are motivated to work together towards the common goal of a fair and productive workplace for everyone.