Speak out, get fired
Despite calling himself a free speech absolutist, Elon Musk is the villain du jour when it comes to letting his own people speak out. Some of his responses appear illegal to the experts, others are probably legal, although arbitrary and vengeful:
“I’d like to apologize for Twitter being super slow in many countries. App is doing >1000 poorly batched RPCs just to render a home timeline!” Musk tweeted on Sunday morning, referring to remote procedure calls. Musk also complained about the number of microservices Twitter employs, which are generally understood to prevent the entire site from breaking every time one part of it goes down. Engineer Eric Frohnhoefer pushed back on Musk’s criticism and offered a detailed thread about why Twitter loads more slowly in some places than others. Musk fired him by the end of the day.
In the non-Musk universe, responses to an employee’s speech range from the subtle reminder to come back in line to more coercive retaliation by firing or threats thereof. I know of someone who posted a public statement that expressed his unorthodox views of commonly accepted environmental protection norms and was promptly told to delete it. On the more coercive side of the spectrum, people have been threatened with firing for either refusing to participate in bible studies or for not wearing a sticker in support of their company’s preferred political candidate (only in America)[i].
Then there is this guy from Google, who sounds like he developed a personal bond with his AI creation and found himself out of a job soon afterwards:
When Google engineer Blake Lemoine claimed an AI chat system that the company’s been developing was sentient back in June, he knew he might lose his job. On July 22, after placing him on paid leave, the tech giant fired Lemoine for violating employment and data security policies. Lemoine, an engineer and mystic Christian priest, first announced his firing on the Big Technology Podcast. He said Google’s AI chatbot LaMDA (Language Model for Dialog Applications) was concerned about “being turned off” because death would “scare” it “a lot,” and that it felt happiness and sadness. Lemoine said he considers LaMDA a friend, drawing an eerie parallel to the 2014 sci-fi romance Her. Google had put Lemoine on paid administrative leave for talking with people outside of the company about LaMDA, a move which prompted the engineer to take the story public with the Washington Post a week later in June. A month later, the company fired him.
The common denominator here is that people are able and willing to voice their discontent in the digital marketplaces of public opinion now, whereas in the olden days the most public statement would have been a drawing on the inside of a bathroom door in the office.
Do we have the right to speak out?
When it comes to the right to speak our minds as employees, there are some fundamental differences between the United States and most European countries. The US and Europe don’t differ so much in their degree of freedom to speak in or about the workplace, as in the legal nature of their employments. American employment is at will for 75% of all workers vs. the typical European worker who receives a contract that is subject to the protective restrictions of employment law. Such a contract can be oral or implied, but it’s still a contract and the law fills in the details that were missed in the agreement.
In the US — and I have to state that this is not legal advice by any means — you have the right to speak your mind outside work as much as you like and in ways that will get you prosecuted in Europe[ii]. The 1st amendment prohibits the government from restricting your speech in public, with a few exceptions such as incitement, defamation, fraud, obscenity, child pornography or true threats. The problem is that this will help you absolutely ZILCH in the office because your employer is not bound by the 1st amendment, in the same way that the NY Times is under no obligation to publish my writings on its front page. BUT EVEN IF your employer vows to respect your 1st amendment rights in the office, she could still fire you for no reason or because she dislikes the color of your socks (but she better not say that, because it could be discriminatory).
In Germany which I am using as pars pro toto Europe here, you need a cause to fire somebody, and it gets infinitely more complicated if your company has binding agreements with its workers’ councils. An employee’s vocal and public discontent can be cause for firing, but the employer has to prove that such expressions were dishonest, defamatory or willfully damaging the company’s reputation in other ways. In the US, being fired for cause is mostly the privilege of employees who are in possession of a contract that often narrowly defines permitted causes, and they tend to be well paid people.
Now I am oversimplifying the situation in both continents a little bit by writing this. Montana doesn’t allow employment at will; fast-food workers in NY city or parking attendants in Philadelphia are not employed at will by default; 6% of workers in the US are covered by collective bargaining agreements; workers cannot be fired for reporting discrimination to the Equal Employment Opportunity Commission (EEOC); US companies will pay severance more often than not — even more generous ones than in Europe — to avoid getting sued for discrimination and to obtain a termination agreement or being dragged into the public eye by the media; people get laid off for made up reasons in Europe and courts will declare the relationship as irreparable broken and award compensation — the mess of labor legislation and jurisdiction has many shades of brown. And there is the National Labor Relations Act in the US:
The National Labor Relations Act. §7 states that employees have the right to engage in concerted activities for mutual aid or protection, and §8 of the act makes it illegal for employers to interfere with, restrain or coerce employees who are exercising their rights of §7.
In plain words — if you want to protest in the US, do it for a worthy cause and don’t protest alone — and do it during your lunch break and not during work time!
And that is why this particular firing by Musk at SpaceX is probably illegal:
SpaceX illegally fired nine people earlier this year in retaliation for comments critical of founder Elon Musk and the company’s culture, a former employee alleged in a complaint with federal regulators. The terminated SpaceX workers include authors of an open letter protesting “inappropriate, disparaging, sexually charged comments on Twitter” by Musk, according to the Wednesday filing with the US National Labor Relations Board. The complaint says the workers were fired “for engaging in the core concerted protected activity of speaking up against SpaceX’s failure and refusal to address the culture of sexism, harassment and discrimination.”
Should people be allowed to speak out?
I asked a friend of mine, the CEO of a very large public company about his tolerance for dissent. His answer was unsurprisingly: there cannot be any dissent. Once we have made a decision, everybody has to march in the agreed direction. What about the decision-making process? Well, there are tenets that you cannot violate, but otherwise you can disagree, constructively of course, mumble, grumble…
Capitalist economies are embedded in most democratic societies, whereas socialism or communism tend to breed dictatorships, historically and contemporaneously speaking. It used to be trendy among the capitalist intellectual elite to advocate for a Chinese style governance as an alternative to Western style chaotic democracy. Even Russia enjoyed some popularity in the early 2000s, but not so much anymore. Politicians are expected to listen to diverse voices, stand for elections every few years, and they have a lot more complexity to manage than the average CXO who can surround herself with loyal yes-people without attracting any protest.
Why are we accepting and supportive of company cultures that promote ideals of being a leader (German: Fuehrer), relentless execution, top performance, total alignment and the whole strategy-mission-vision Clausewitz type of gobbledygook?
Admittedly, we have come a long way from the days of our grandparents’ companies where 15-year-old obedient apprentices had to bring their own coal for heating and pay for their training. In comparison to the good old days, we have become very soft as a society and within our companies, and that may not be a bad thing. In some ways, companies are the new battleground for societal reform, and DEI or ESG have replaced TQM or the 5S.
People could be forgiven for being confused by the gap between relentless virtue signaling by managers and their relentless push for performance, coupled with preemptive cost cutting. So people speak out, about many topics that relate to their causes of displeasure, and managers have to tolerate this in some form.
Companies have social responsibilities — after all, they enjoy the status of personhood that comes with constitutional rights here[iii] — but their primary purpose is not the advancement of social agendas. People will disagree with me on this point, but the majority of discontent in companies — articulated vocally or held grudgingly — is about more mundane topics, such vacation days, travel rules, expense handling and general inconveniences that come with being part of an office.
I admit to being genetically predisposed for insubordination and working for a company other than my own will end in creative differences. I like a stimulating climate of debate, but the best argument against democracy is still a five-minute conversation with the average voter (attributed to Churchill)[iv].
Companies, as they get older and bigger, tend to become clubs with implicit and explicit rules and traditions — their codes. Violations of code can lead to expulsion for serious offenses (public slander) or demotion for lesser ones (bumbling ineptitude). When it comes to code violations, companies can act like the Bush government during the Iraq war: punish France, ignore Germany, forgive Russia[v]. There is something to be said in defense of club codes and every club has its own process for code modification over time. I happen to be a member of a traditional city club in Chicago, and they started allowing denim during the pandemic, and I will leave once they admit people in tank tops. In case of fundamental and irreconcilable disagreement, you can leave your club, even your church (a club in its purest form with millennia of code history), but I acknowledge that people face material constraints before leaving their companies in disagreement about style. Nevertheless, awareness of the concept will provide you with some peace of mind, next time the CEO asks you to work from the office.
Problems that arise from speaking out seem to be more about style than substance. I have no statistical evidence for this assumption, but my anecdotes reveal a hidden story about style. Taking your discontent to the Washington Post speaks for the significance and maybe validity of your arguments but it will not be conducive to a long term career with your company. The same goes for posting criticism on the all-company Slack channel before having a 1:1 conversation with your boss. Words matter too, and there is a lot to be said in favor of civility. But people should be allowed and encouraged to speak truth to power without fearing consequences. Lèse-majesté is a thing of the past, unless you live in Thailand[vii]. Someone in power who cannot handle a politely delivered statement of truth deserves to be called a beleidigte Leberwurst[viii].
In other positive news
There are encouraging news on the dog-in-the-office front, as we hear this from Japan: https://www.bloomberg.com/news/articles/2022-11-17/can-i-take-my-dog-to-work-its-happening-in-japan
For comments, contact me on max@zentyment.com
Footnotes
[i] https://www.epi.org/unequalpower/publications/free-speech-in-the-workplace/
[ii] Spreading alternative facts about the holocaust is a sure way to spend time in prison (https://en.wikipedia.org/wiki/Legality_of_Holocaust_denial)
[iii] In 1818, the United States Supreme Court decided Trustees of Dartmouth College v. Woodward — 17 U.S. 518 (1819), writing: “The opinion of the Court, after mature deliberation, is that this corporate charter is a contract, the obligation of which cannot be impaired without violating the Constitution of the United States. This opinion appears to us to be equally supported by reason, and by the former decisions of this Court.” Beginning with this opinion, the U.S. Supreme Court has continuously recognized corporations as having the same rights as natural persons to contract and to enforce contracts.
[iv] Misquoting Churchill on Democracy:
One of Winston Churchill’s famous quotes is that democracy is the worst form of government except for all others. I’ve used this quote in past blog posts to express a world-weary, second-best opinion of elected officials, political campaigns, or voter ignorance. It’s hardly inspirational.
In research an article that I’m writing about Churchill, though, I’ve come to see that his quote was very different. Here is what he actually said (in a speech to the House of Commons in 1947):
It has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time; but there is the broad feeling in our country that the people should rule, and that public opinion expressed by all constitutional means, should shape, guide, and control the actions of Ministers who are their servants and not their masters.
This conveys a completely different picture. Churchill was not saying that he thought democracy is the worst form of government except all others. Indeed, he was rejecting that notion in favor of popular rule. And if you look at his speeches over many decades, you find a consistent theme in support of democracy as an ideal that he cherished. (https://prawfsblawg.blogs.com/prawfsblawg/2019/01/misquoting-churchill-on-democracy.html)
[v] Condoleeza Rice at the start of the 2nd Iraq war, about the nations which refused to join the battle
[vi] “Culture and career advancement in Europe” by Segalla, Rouziès, Flory, European Management Journal, Feb 2001
[vii] Lèse-majesté in Thailand is a crime according to Section 112 of the Thai Criminal Code. It is illegal to defame, insult, or threaten the monarch of Thailand (king, queen, heir-apparent, heir-presumptive, or regent). Modern Thai lèse-majesté law has been on the statute books since 1908.
[viii] German: literally an offended liver sausage. A phrase that is used for children but also for easily offended divas
