Thorny Legal Questions Raised by Twitter Turmoil
Twitter is recently undergoing some “extremely hardcore” workplace turmoil, shall we say, and doing so very publicly before the eyes of millions and millions of Twitter users around the world. When I first saw reference to the now well-known email ultimatum set down by Elon Musk, Twitter’s new owner and CEO, my first instinct, as an employment lawyer, was to think through the legal ramifications. Of course, nothing in this blog post constitutes legal advice — any current or former Twitter employee with legal questions should talk to a lawyer — but we can use the recent goings on at Twitter to explore some interesting legal issues.
Firstly, let’s review the email in question. In late October, Twitter laid off nearly half of its workforce. Shortly thereafter, on November 16, 2022, all remaining Twitter employees received an email stating that:
Going forward, to build a breakthrough Twitter 2.0 and succeed in an increasingly competitive world, we will need to be extremely hardcore. This will mean working long hours at high intensity. Only exceptional performance will constitute a passing grade.
If you are sure that you want to be part of the new Twitter, please click yes on the link below:
Anyone who has not done so by 5pm ET tomorrow (Thursday) will receive three months of severance.
Reportedly, a substantial number of employees did not click “yes.” Those employees, presumably, no longer work at Twitter, at least if the above email is to be taken at face value.
So, did an employee who did not click “yes” technically quit their job? Or were they fired? Can someone quit their job by simply not responding to an ultimatum, and a self-described “hardcore” one at that? Given that the email deadline was 5 PM, some employees (particularly in Europe) presumably finished their workday prior to the deadline, therefore, the only evidence of a supposed resignation would be their failure to respond to an email after working hours. Is that really a resignation? Or are they being fired for not affirmatively clicking “yes?”
What about employees who feel that they are simply unable to commit to the new “extremely hardcore” culture of “long hours at high intensity?” What if an employee has a disability and simply cannot commit to extremely long, high intensity hours (or cannot commit to in-person work)? What about an employee who might be able to commit to such hours, but only with a disability accommodation? (After all, with so little time to respond to the email, an employee could not possibly request and obtain an accommodation so quickly).
What about employees who feel pushed out by the email and the culture the email envisions? What about people who understand, correctly or otherwise, Musk’s use of “extremely hardcore” to be explicitly or implicitly biased? Does “extremely hardcore” include women with young children? People who are over 50? Or is it coded language for non-disabled male engineers of a certain age? (Photographs posted of some of the employees who remained after the 5 PM deadline appear to show a stark gender imbalance). If any employee is unsure of the answer to these questions and does not respond by the 5 PM deadline, have they quit their job? Or, conversely, has an employee who does click yes implicitly certified their ability and willingness to work endless hours at high intensity? Or do they reserve the right to later set boundaries or request an accommodation?
The answers to these questions aren’t immediately clear and will depend heavily on the state the employee works in, as well as a host of individual factors. These questions will no doubt be the subject of countless lawsuits and negotiations between lawyers (particularly if the company, now lacking a payroll department, is not able to make good on its promise of severance, opening up a host of new contract law questions concerning the email’s enforceability).
These questions have real consequences for people. Whether someone is deemed to have resigned voluntarily or been fired affects whether someone qualifies to receive unemployment insurance. If someone was subjected to discrimination at Twitter – particularly if they were subjected to discrimination for some reason that relates to their inability or unwillingness to sign up for “extremely hardcore” Twitter 2.0 – then the question of whether they quit or were fired may determine how much backpay and frontpay they are eligible for if they prevail in a lawsuit. These issues can also affect how people tell the stories of their lives — am I unemployed because I walked away from my job, or because I was pushed out against my will? While former Twitter employees (and their lawyers) may now need to grapple with these questions, any employers seeking to enact such severe culture changes are well advised to hire employment counsel before hitting send on company-wide emails.
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney Christine Clarke who counsels clients on employment, labor, healthcare, housing, and civil rights law, as well as legal compliance for non-profit organizations; First Amendment free speech and constitutional due process claims; and discrimination dispute resolution and prevention trainings. Ms. Clarke is admitted to practice law in New York, as well as the U.S. District Courts in the Southern and Eastern Districts of New York, the Second Circuit Court of Appeals, and the United States Supreme Court. Attorney Advertising.