Chipotle was recently ordered to stop firing workers for venting about poor work conditions on Twitter, but companies can technically still terminate employees for speaking out.
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For most people, having a job is a necessary and depressing factor in life. Unless you're independently wealthy, or working your ass off toward that goal, you're going to need a paycheck from an employer. But workers are increasingly realizing that they're doing a lot of labor for large corporations that are paying them pennies compared to how much they profit. Workers are getting woke, you might say.
And where does one go when she gets woke? Naturally, Twitter—or any number of websites that will allow disgruntled employees to air their grievances to an audience. I'm sure everyone remembers the Yelp employee who was fired after writing a blog post on Medium about her experiences with the company. In an open letter (bleakly tagged "comedy") to Jeremy Stoppelman, the company's CEO, Talia Ben-Ora wrote about how she couldn't even afford transportation to work at customer support at Eat24 in San Francisco because the company wasn't paying her a living wage. Shortly afterwards, she was fired. Stoppelman responded to the post and ensuing coverage via tweets, asserting that the underpaid employee wasn't let go because she spoke out, but Ben-Ora seemed to be under a different impression.
It wouldn't be unheard of if she was. Last year, a Chipotle employee was explicitly let go because he tried to point out the company's questionable labor practices. James Kennedy first came under company scrutiny when he tweeted about the burrito chain's low wages. He flippantly sent off a tweet, apparently in response to something on Chipotle's socials, that said, "@ChipotleTweets, nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?" Chipotle ordered Kennedy to delete his tweets; he was later let go when he circulated a petition online that charged the company with violating worker break policies.
Unlike Ben-Ora, the Chipotle employee chose to fight his firing by appealing to the the National Labor Relations Board, the entity that can stop employers from wrongly firing someone over trying to gain better working conditions. The board ruled that his actions were protected under the National Labor Relations Act; Kennedy took another job at American Airlines but was awarded back pay and benefits. (He told publications he would accept the back pay in the form of free, fast-casual, Mexican-inspired food, which is technically a victory.)
This may sound inspiring, but it doesn't mean you should fire up your Twitter account to call out your employer for being a dick. When I talked to Paula Brantner, a senior adviser at the non-profit organization Workplace Fairness, which provides legal information to workers about their rights, she emphasized that workers actually have very limited rights protecting their online speech. The fact that Kennedy was able to take his employer to court is more of a Bandaid solution than a fix.
For one, most speech against your employers isn't protected. If you work at Walmart and you tweet, "Walmart sucks and is stupid," you could be fired with no recourse. Even if you tweeted, "Walmart owns sweatshops and that's horrible!"—and you wrote in your Twitter bio "Views are my own"—you could be fired, which is crazy. But the law simply hasn't caught up to people speaking their thoughts publicly. The National Labor Relations Board only recognizes speech that relates to bettering your specific work conditions as protected.
If you work at Walmart and you tweet, 'Walmart sucks and is stupid,' you could be fired with no recourse.
Many companies, like Chipotle, also make employees sign a non-disparagement clause. Brantner says those clauses aren't technically legal, especially if they inhibit a worker's right to organize and talk openly about labor issues, but it's not like they're banned. Companies still have these clauses—and they fire people for breaking them. "Whether workers are under a non-disparagement clause or not, if they are terminated for [advocating for better working conditions] it would probably violate the National Labor Relations Act. That being said, you would have to go through the process of trying to vindicate your rights. For most people, it's easier to never be fired in the first place," she said.
This is why Brantner says it's probably not a good idea to just tweet that your boss sucks and isn't paying you enough to afford food, though that's a reasonable impulse. "It's not necessarily a good idea to broadcast your displeasure far and wide. You might want to be careful," she emphasized. "You may want to work directly with your coworkers instead of social media networks."
She's talking about the idea of unionizing, which the editorial staff at VICE successfully accomplished this year, but that doesn't seem to be as seductive to many people. Shortly after Ben-Ora posted her complaints about Yelp to Medium, a single mother who said she was fired because she had to take time off for an emergency did the same. The Guardian recently published a series called "My Life in the Red," which involves people writing, using their real names and employers' names, stories about how their jobs are shitty. The internet, it seems, has become a sort of 21st-century labor union. Rather than banding together with fellow employees—and starting the often slow and involved official process of organizing—workers are hoping that they can form an alliance with consumers instead. In theory, this is faster, more immediate, and initially self-gratifying.
"People have seen campaigns where a practice was overturned using social media," Brantner said, citing the successful campaign against Jimmy Johns to remove the sandwich company's baffling non-compete clause. The trade-off is that individual workers leave themselves vulnerable if they go this route; companies can still fire someone and hope that person doesn't have enough money or enough time to protest. "Ultimately, these non-disparagement clauses are going to be stricken, or considered not best practices by HR professionals," Brantner says. "You're going to see people advising employers not to have such policies. But as long as they exist—and as long as employers think they can get away with it—employees will bear the burden. Especially low-wage workers who don't have a lot of money to be in a legal battle, or who can't get employed elsewhere when they get fired.
"Even if, down the line, the board finds your rights have been violated, that's not much comfort to someone who was making $10 an hour and had to find a new job," she added.
Unfortunately, we haven't reached that tipping point where transparency alone can hold employers accountable for being fair to their employees. In the Yelp whistleblower's case, the internet largely responded with ridicule, and no one really seemed to care that the company didn't fix its labor problem so much as move it around. In Stoppelman's response to Ben-Ora's open letter, he mentioned that Yelp would be moving their Eat24 reps to Phoenix, where the low wages would be slightly less devastating.